This publication is intended to support the use of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security. It is not intended to contradict the language of the Guidelines as endorsed by the Committee on World Food Security on 11 May 2012 nor the role of States in their implementation.

This publication has been developed with the financial assistance of the Food and Agriculture Organization of the United Nations (FAO), and the Government of Germany. The views expressed herein are those of the authors and do not necessarily reflect the official policies or views of FAO.

The designations employed and the presentation of material in this information product do not imply the expression of any opinion whatsoever on the part of the Food and Agriculture Organization of the United Nations (FAO) concerning the legal or development status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. The mention of specific companies or products of manufacturers, whether or not these have been patented, does not imply that these have been endorsed or recommended by FAO in preference to others of a similar nature that are not mentioned.

The views expressed in this information product are those of the author(s) and do not necessarily reflect the views or policies of FAO.

ISBN 978-92-5-109132-6

E-ISBN 978-92-5-130296-5 (MOBI)

© FAO, 2016

FAO encourages the use, reproduction and dissemination of material in this information product. Except where otherwise indicated, material may be copied, downloaded and printed for private study, research and teaching purposes, or for use in non-commercial products or services, provided that appropriate acknowledgement of FAO as the source and copyright holder is given and that FAO’s endorsement of users’ views, products or services is not implied in any way.

All requests for translation and adaptation rights, and for resale and other commercial use rights should be made via www.fao.org/contact-us/licence-request or addressed to copyright@fao.org.

FAO information products are available on the FAO website (www.fao.org/publications) and can be purchased through publications-sales@fao.org.

Acknowledgements

This technical guide has been prepared by a team led by Lorenzo Cotula of the International Institute for Environment and Development (IIED) and including IIED consultant Thierry Berger, Rachael Knight at Namati, Margret Vidar and Peter Deupmann at the Food and Agriculture Organization of the United Nations (FAO) and Thomas F. McInerney, and under the direction of Margret Vidar.

A two-day expert workshop, co-hosted by FAO and IIED and held at IIED (London, 17–18 February 2015), provided an opportunity to discuss a first draft of the guide and to gather comments, examples and contributions. Workshop discussions made a significant contribution to this guide. In addition to the drafting team, the following individuals participated in the workshop: Stéphane Brabant, Lucy Claridge, Ross Clarke, Godwin Dzokoto, Vuthy Eang, Bahram Ghazi, Nicolas Heurzeau, Oliver Holland, Megan MacInnes and Ana María Suárez Franco. Daphné Lacroix (IIED) led the organization of the workshop.

The guide also benefited greatly from comments from Safia Aggarwal, David Bledsoe, Dubravka Bojic, Margherita Brunori, Rosa Angélica Castaneda Flores, Yannick Fiedler, Ana Paula De la O Campos, Juan Carlos Garcia y Cebolla, Paolo Groppo, Asako Hattori, Daniel King, Eric Jesper Karlsson, Naomi Kenney, Tony Lamb, Jonathan Lindsay, Pascal Liu, Ali Mekouar, Rebecca Metzner, Sofia Monsalve Suàrez, Lorenza Paolini, David Palmer, Dominique Reeb, Leila Shamsaifar, Darryl Vhugen and the International Planning Committee for Food Sovereignty (Working Group on Land and Territory).

Safia Aggarwal, Marianna Bicchieri, Yannick Fiedler, Eric Jesper Karlson, Tony Lamb, Jonathan Lindsay, Eliana Haberkon, David Palmer and Francesca Romano did the final review. The guide was edited by Shannon Russell and laid out by Luca Feliziani.

FAO wishes to express its appreciation to IIED for the collaboration on this technical guide, to the Government of Germany for the financial contribution that made the publication possible and to all the individuals named here for their valuable time and expertise.

Foreword

Responsible governance of tenure promotes and supports the progressive realization of the right to adequate food, which is one of the objectives of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT; hereafter the Guidelines). The Guidelines also aim to foster sustainable social and economic development, the eradication of poverty and responsible investment.

Voluntary and non-legally binding, the Guidelines were endorsed by the Committee on World Food Security (CFS) on 12 May 2012. They build on international law – in particular, human rights law – and set out principles and internationally accepted standards for responsible practices. They are primarily addressed to states, but they also have provisions directly addressed at private sector actors, such as lawyers, surveyors and investors. They can also be used by implementing agencies, judicial authorities, local governments, organizations of farmers and small-scale producers, of fishers, and of forest users, by pastoralists, indigenous peoples and other communities, civil society, academia and all persons concerned to assess tenure governance and identify improvements and apply them.

The Food and Agriculture Organization of the United Nations (FAO) has developed a series of technical guides to provide more detailed guidance on particular issues or for particular groups. This technical guide, Responsible governance of tenure and the law: a technical guide for lawyers and other legal service providers is aimed at legal professionals working with governments, civil society, the private sector or development agencies as well as law societies, notaries, judges and all those who are interested in understanding the role of law in giving effect to the provisions of the Guidelines. National law is crucial for the responsible governance of tenure for all, with a particular focus on more vulnerable segments of society. The Guidelines provide important elements for shaping a well-functioning legal framework to facilitate their effective implementation at the national level. The technical guide reviews the legal implications of the Guidelines and provides guidance on assessing national legislation, legal reform and improved implementation as well as the settlement of disputes. It covers legal issues related to land, fisheries and forests, complementing other technical guides that focus on particular resources, situations and issues.

The other technical guides also contain references to legal issues and are, thus, complementary to this guide. Readers interested in the specific aspects of implementation of the Guidelines, such as gender, free, prior and informed consent (FPIC), investments, registration, the commons, pastoralism, forestry or fisheries, should also refer to these guides.

It is hoped that this technical guide will contribute to strengthening the rule of law as a principle of responsible governance and as a key human rights principle.

Contents

Acknowledgments

Foreword

Acronyms

1. Introduction

1.1Law and the governance of tenure

1.2Scope and limitations of this guide

1.3Who is this guide for and how should it be used?

1.4Outline of the guide

2. The legal significance of the Guidelines

2.1What is the legal value of the Guidelines?

2.2Professional responsibility, rule of law and the Guidelines

2.3Social and legal legitimacy: understanding “legitimate tenure rights”

2.3.1Social and legal legitimacy

2.3.2What are legitimate tenure rights?

2.3.3Customary and indigenous rights are legitimate tenure rights

2.3.4Common property rights, use rights, tenancy rights, and overlapping and shared rights are legitimate tenure rights

2.3.5Women’s rights are legitimate tenure rights

3. Using the Guidelines in lawmaking

3.1Assessing national law based on the Guidelines

3.1.1Why undertake an assessment of national law?

3.1.2What laws should be assessed?

3.1.3How do we undertake an assessment?

3.1.4Who should take part in the assessment?

3.1.5How to use the outcomes of an assessment?

3.2Lawmaking: concepts, actors, instruments and processes

3.2.1Ensure quality lawmaking

3.2.2Considering the legal system as a whole

3.2.3Promoting participatory lawmaking processes

3.3Reflecting the Guidelines into law

3.3.1Recognition of legitimate tenure rights, including customary rights

3.3.2Tenure rights system reform: redistribution and restitution

3.3.3Transparency

3.3.4Consultation and free, prior and informed consent (FPIC)

3.3.5Environmental and social impact assessments

3.3.6 Expropriation and compensation

4. Making law work in practice

4.1The role of the state

4.1.1Allocating adequate resources to ensure implementation

4.1.2Raising awareness about laws that promote responsible governance of tenure

4.1.3Streamlining legal and administrative procedures

4.1.4 Instituting robust anti-corruption mechanisms

4.1.5Paying special attention to poor and marginalized groups

4.1.6Considering the relevance of extraterritorial dimensions and obligations

4.2Role of public-interest legal service organizations

4.2.1Legal empowerment and legal literacy education

4.2.2Supporting claims of tenure rights infringements and discrimination based on gender, age, minority status and social class

4.2.3Supporting documentation and registration of legitimate tenure rights

4.2.4Supporting communities in negotiations with companies

4.2.5Support for individuals and communities facing expropriation of legitimate tenure rights

4.3 The role of business lawyers

5. Resolution of tenure disputes

5.1The resolution of tenure disputes – key concepts

5.1.1What are tenure disputes?

5.1.2Sources of tenure disputes

5.1.3 Providing mechanisms for resolving tenure disputes and protecting legitimate tenure rights

5.2Dispute resolution in the Guidelines

5.2.1Improving access to courts

5.2.2Eliminating unnecessary legal and procedural requirements and making court procedures less cumbersome

5.2.3Selecting and training a diverse judiciary

5.2.4Strengthening customary justice systems by integrating them with statutory systems

5.2.5Establishing a clear and accessible system of judicial appeal

5.2.6Strengthening judicial oversight and accountability mechanisms

5.2.7Enforcement of laws and court decisions

5.3 Using dispute-resolution processes to promote implementation of the Guidelines

6. Ways forward

References

List of boxes and table

Box 1.1The law in the Guidelines: a few examples

Box 1.2The role of lawyers and legal service providers in the Guidelines

Box 2.1The Guidelines and international law

Box 2.2The UN Guiding Principles on Business and Human Rights

Box 2.3The Small-Scale Fisheries Guidelines and the Guidelines

Box 2.4The Framework and Guidelines on Land Policy in Africa

Box 2.5UN definition of rule of law

Box 2.6How to identify legitimate tenure rights according to the Guidelines

Box 2.7Protection for customary and indigenous tenure rights in the Guidelines: selected provisions

Box 2.8Fishing-restricted areas and customary rights in Fiji

Box 2.9Tenants’ rights in Nepal and Sierra Leone

Box 3.1The Guidelines on conducting assessments

Box 3.2The Guidelines’ general principles

Box 3.3Tenure governance assessment in the Philippines

Box 3.4Piloting a comprehensive legal and policy assessment in Sierra Leone

Box 3.5National lawmaking in the Guidelines: a few examples

Box 3.6Legislative drafting handbooks and field piloting of laws in Burkina Faso and Samoa

Box 3.7Suriname’s aquaculture law

Box 3.8Public participation in lawmaking in Indonesia, Mali, Mozambique and the United Republic of Tanzania

Box 3.9Recognition of all legitimate tenure rights: examples of Guidelines’ provisions

Box 3.10Examples of legal recognition of customary land rights

Box 3.11Tenure reforms in Azerbaijan, Colombia, New Zealand and South Africa

Box 3.12Transparency legislation in Cameroon, France and Liberia

Box 3.13Consultation and FPIC in Ecuador, Mozambique and the Philippines

Box 3.14National legislation requiring social and environmental impact assessments in Guinea-Bissau and India

Box 3.15Selected Guidelines’ provisions on expropriation and compensation

Box 3.16Compensation for customary tenure rights

Box 3.17Expropriation legislation in India

Box 4.1 Guidelines’ provision concerning legal education of citizens

Box 4.2Twin-track approach to legal empowerment: providing legal training to government officials and NGO staff together in Mozambique

Box 4.3Training local leaders to ensure just legal outcomes in Kenya

Box 4.4Fisheries Law of the Lao People’s Democratic Republic

Box 4.5Guidelines’ provisions concerning tenure rights records

Box 4.6Mandatory pro bono legal work in South Africa

Box 4.7Relevant Guidelines’ provisions on the prevention of corruption

Box 4.8Women’s community forests in Nepal

Box 4.9Home country measures in Denmark, France, Germany and Norway

Box 4.10Benefits of paralegals

Box 4.11Pairing paralegals and young lawyers to support indigenous communities in Cameroon

Box 4.12Innovative strategies to promote legal literacy: radio broadcasts, legal caravans and tenure rights information centres in Mali and Uganda

Box 4.13Leveraging community land protection processes to strengthen women’s tenure rights in Liberia, Mozambique and Uganda

Box 4.14Supporting communities in interactions with companies: experience from Sierra Leone and the Philippines

Box 4.15Examples of Guidelines’ provisions on expropriation

Box 4.16Business enterprises in the Guidelines

Box 4.17Precedent for lawyers advising clients to adhere to the Guidelines

Box 5.1Examples of tenure disputes

Box 5.2Mediation

Box 5.3Using mediation to solve fisheries issues – Western Australia

Box 5.4Section 21 of the Guidelines: resolution of disputes over tenure rights

Box 5.5Improving access to courts in Botswana and Brazil

Box 5.6Formalizing “landscape-based” evidence and allowing oral testimony as proof of land rights in Eastern and Southern Africa

Box 5.7Examples of national court cases in Colombia, Kenya and the United Kingdom of Great Britain and Northern Ireland

Table 2.1Types of legitimate tenure rights

Acronyms

1

Introduction

1. Introduction

The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT, hereafter the Guidelines) are the most comprehensive global instrument that provides guidance to states and non-state actors on how to promote responsible governance of tenure of land, fisheries and forests. The top United Nations (UN) body in matters of food security, the Committee on World Food Security (CFS) unanimously endorsed the Guidelines on 11 May 2012. That CFS endorsement followed two years of extensive consultations and one year of intergovernmental negotiations leading to the final text of the Guidelines.

With the endorsement of the Guidelines, there is now widespread consensus on the elements of desirable action to improve the governance of tenure of land, fisheries and forests. The challenge is to translate the guidance contained in the Guidelines into actual improvements in the governance of tenure of land, fisheries and forests.

This technical guide aims to assist implementation of the Guidelines. It provides guidance on how to use the law to promote responsible governance of tenure of land, fisheries and forests. There is recognition in the Guidelines that the law is an important vehicle for translating international standards into real change. For example, the Guidelines provide guidance on features of legal frameworks, on lawmaking processes and on legal assistance for vulnerable groups (see Box 1.1 for a few examples).

Building on these provisions, this technical guide provides more specific guidance in four areas:

i) how to appraise legal frameworks to assess the extent to which they are in line with the Guidelines;

ii) how to prepare or revise legislation where needed;

iii) how to ensure that legislation is duly implemented; and

iv) how to use the Guidelines in the context of dispute settlement.

1.1 Law and the governance of tenure

The role of law in the governance of tenure tends to spark lively debates. Some people are optimistic about the usefulness of the law in promoting social change; others dismiss law as largely irrelevant, marred by problems of implementation and enforcement. In some contexts and situations, the law provides avenues for the pursuit of justice; in others, it protects the interests of the rich and powerful.

There are complex interactions between law and society, and these contrasting perceptions all have a place in assessing strategies involving use of the law to improve the governance of tenure. Throughout history, the law has been a vehicle for the rich and powerful to legitimize their tenure claims, but it has also assisted marginalized groups to claim rights and seek redress.

Irrespective of the positions taken, it is clear that more is needed than just “good” law; that is, law that is consistent with the Guidelines. The adoption of a new tenure law can send a strong political signal, and it can be an important step in recognizing previously marginalized tenure claims. However, the way in which a law is interpreted, applied and enforced is ultimately what shapes practical outcomes. Corruption, dysfunctional judiciaries and ineffective administrations can all get in the way of a law achieving its desired objectives. As a result, many good laws remain dead letter. The adoption of a new piece of legislation is only a part of the process of using law to improve the governance of tenure.

Overall, there is widespread recognition that the law is an essential, albeit not sufficient, part of implementing the Guidelines. The importance of law is recognized in the Guidelines, which devote several provisions to legal frameworks, legal capacity support and dispute settlement, and which include the rule of law among the key “principles of implementation” of the Guidelines (par. 3B.7).

A realistic understanding of the limits of “good law” calls for guidance on the range of actors and processes necessary to enable the law to operate and make a difference in practice – including courts and administrative machineries, state and non-state agencies providing capacity support, advisory services or representation, through to the role of citizens and companies as norm users. And while good law alone does not necessarily achieve its stated goals, there is little doubt that bad law constrains the implementation of the principles reflected in the Guidelines all over the world. This situation calls for guidance on how to assess and reform legal frameworks to promote responsible governance of tenure of land, fisheries and forests.

1.2 Scope and limitations of this guide

The concept of tenure – and law itself – is embedded within a country’s political, economic, cultural and social relations. While recognizing these important dimensions, however, this guide focuses on technical legal aspects.

The focus on legal aspects of tenure in no way suggests that more “formalized” tenure systems are necessarily superior to “informal” ones. Customary systems with varying degrees of formalization can work well and the Guidelines explicitly call for states to promote, among other things, laws that provide recognition of informal tenure (see Chapter 2). In addition, this guide does not assume that the law is the only or even the main vehicle through which the Guidelines can be implemented. Complementary strategies may be needed, particularly where weak rule of law undermines the effectiveness of the law as a source of regulation.

The Guidelines provide comprehensive guidance on multiple key issues relating to the governance of tenure of land, fisheries and forests. Space constraints do not allow this guide to cover all these issues. Rather, the guide covers selected themes to illustrate the opportunities and challenges involved in using the law to improve the governance of tenure.

This guide aims to be broadly relevant to the wide range of contexts worldwide where governance of tenure issues arise, yet legal arrangements inevitably vary from society to society. There is great diversity in the laws of different jurisdictions. As a result, the guide can only provide basic guidance on aspects that are potentially of general relevance. Its use in specific contexts may need to be complemented by tailored technical assistance; for instance, to appraise applicable legal frameworks, adopt legal reforms or strengthen judicial or administrative processes.

The range of legal instruments relevant to the governance of tenure of land, fisheries and forests is very broad, going well beyond legislation that explicitly refers to these resources in its title. For example, family and succession law as well as sectoral legislation may shape the tenure rights of women and youth. This guide takes an integrated approach and considers multiple laws affecting the governance of tenure, but it focuses on laws primarily framed in tenure terms.

The governance of tenure is intrinsically linked to a wide range of (sectoral and cross-sectoral) legal instruments at national and international levels. Internationally recognized human rights are at stake, and international treaties may affect the governance of tenure – for example, with regard to fisheries management and legality in timber trade. While recognizing the importance of these international law dimensions, however, the guide focuses on national law.

Readers of this guide may also wish to refer to other technical guides produced by the Food and Agriculture Organization of the United Nations (FAO) and other stakeholders. FAO has published specific guides on gender and land (Governing land for women and men. A technical guide to support the achievement of responsible gender-equitable governance of land tenure, 2013a), on indigenous peoples (Respecting free, prior and informed consent. Practical guidance for governments, companies, NGOs, indigenous peoples and local communities in relation to land acquisition, 2013e), on fisheries (Implementing improved tenure governance in fisheries. A technical guide to support the implementation of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, 2013b) and on forestry (Improving governance of forest tenure: a practical guide, 2013c). Most recently, a guide on agricultural investments has been prepared (Safeguarding land tenure rights in the context of agricultural investment. A technical guide on safeguarding land tenure rights in line with the Voluntary Guidelines for the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, for government authorities involved in the promotion, approval and monitoring of agricultural investments, 2015e).FAO is also working on technical guides for investors, on the commons, on pastoralists, on registration of tenure rights, on the use of information technology and on valuation.

Many of these guides touch upon legal issues, considering in depth those that are relevant to the topic at hand.

1.3 Who is this guide for and how should it be used?

This guide is written for legal professionals assisting a wide range of stakeholder groups including: governments, parliaments, dispute settlement bodies, non-governmental organizations (NGOs), organizations of farmers and small-scale producers, of fishers, of pastoralists and of forest users (i.e. “rural producer organizations”), indigenous peoples and community groups, the private sector and all persons concerned. This audience would include government advisors, legislative drafters, judges, lawyers in private practice, notaries, legal service organizations working with rural producer organizations and local communities, and in-house counsels. This guide may also be of interest to academics.

All these target groups may engage, in different ways and at different stages, with the law relating to the governance of tenure of land, fisheries and forests. The Guidelines call on all providers of legal services to undertake due diligence to the best of their ability when providing services, and on professional associations to promote high levels of ethical behaviour in legal service provision (see Box 1.2). Arguably, taking due account of the Guidelines in providing legal services constitutes an important part of that due diligence and ethical behaviour (see Chapter 2).

These multiple target groups perform different roles and have the potential to advance the implementation of the Guidelines in different ways. However, they may also support different, and possibly competing, tenure claimants, and have different and, at times, conflicting perspectives on applying the Guidelines. These potential tensions need to be factored into the development of strategies to harness the law for the implementation of the Guidelines, including by ensuring that such implementation is informed and based on a solid understanding of the legal principles underlying the Guidelines.

Legal professionals working for or with states. As much guidance contained in the Guidelines is addressed to states, legal professionals advising states can make a real difference to ensure that the standards embodied in the Guidelines are upheld. There are several reasons why they should do so. The Guidelines reflect a global consensus on international best practice. In most cases, implementing the Guidelines is likely to help implement legal obligations under national or international law, including human rights treaties. In fact, several provisions of the Guidelines reflect international human rights law, which constitutes binding international law.

More generally, governments have an interest in ensuring that the Guidelines are upheld. Decision-making in line with the Guidelines is arguably more likely to receive broad-based support. Also, ensuring that legitimate tenure rights are adequately protected can increase equity and peaceful coexistence within society, and the perceived legitimacy of legislation. It can also help to create a more conducive climate for the private sector because of the increased security of tenure and the reduced disputes.

Governments, and the legal professionals advising them, can undertake thorough reviews to assess whether existing legal frameworks meet the standards established by the Guidelines, and can design and implement law reforms to meet those standards if they do not. Developing and adopting legislation is normally a prerogative of parliaments.

The state that has jurisdiction on the land, forest or waters is the most directly relevant state for the purpose of implementing the Guidelines. Other states may also be relevant. For example, where foreign investment is involved, the country of origin of investors can play an important role in ensuring that investments uphold the Guidelines (par. 3.2 and 12.15). The management of fisheries commonly involves international agreements among multiple states.

Public-interest legal service organizations. Legal service organizations play an important role in advancing the implementation of the Guidelines in their work with indigenous peoples, local communities and small-scale rural producers such as farmers, pastoralists, forest dwellers and fisherfolk, including associations and federations of these, as well as with non-governmental organizations (NGOs) and cooperatives.

Where the provisions in the Guidelines go beyond existing national law requirements, they provide a useful benchmark for advocacy and public scrutiny, and for promoting law reform as well as better implementation of existing laws. On the ground, legal service organizations can use the Guidelines to help stakeholders to better exercise their rights in such contexts as: tenure rights redistribution or restitution, efforts to secure tenure rights as a basis for livelihood opportunities, or in their partnerships with the private sector.

Business lawyers. The Guidelines provide an important reference for lawyers advising companies or investors on business activities that could have a bearing on tenure rights. Lawyers representing these clients, including both foreign and domestic investors, may find the Guidelines a useful tool for determining whether gaps in national law exist, for designing and drafting contracts to mitigate risks associated with gaps or inconsistencies in domestic law and for the undertaking of due diligence. The United Nations Guiding Principles on Business and Human Rights, and the concept of human rights due diligence they embody, have increased awareness among business lawyers about the importance of integrating social responsibility considerations in commercial law practice, including in connection with due diligence processes.

Tenure risk can affect businesses in important ways, including in the form of financial risk, reputational risk, political risk (i.e. contract renegotiation), and the risk of sabotage for business ventures that are perceived to trump legitimate tenure rights (The Munden Project, 2012 and 2014). As contestation on “land grabbing” shows, compliance with national law alone does not shelter companies from criticism. Lawyers may play a role in advising clients on actions that may reduce reputational risks or advance social responsibilities. Compliance with international standards has become a key part of the “social license to operate”; meaning that more responsible investment is more likely to enjoy greater support from external stakeholders.

While the Guidelines are primarily directed at states, they also reaffirm the responsibility of business enterprises to respect human rights and legitimate tenure rights, and some provisions apply to investments directly (see par. 3.2 and 12.12). A number of companies have voluntarily agreed to adhere to the Guidelines both in their own operations and in their supply chain management. For example, two large beverage corporations announced commitments to encourage their suppliers to meet the standards embodied in the Guidelines (FAO, 2014a).

Law societies, lawyers, notaries, judges and legal professionals, more generally. In addition to the specific groups of legal professionals listed above, the guide targets the wider range of legal professionals that, in any given national legal system, enable the law to operate in practice. This includes:

i) lawyers and notaries, who can help promote the implementation of the Guidelines through their regular provision of legal services to members of the general public;

ii) law societies, which can play a key role in mainstreaming the Guidelines into legal practice through awareness raising, continuing professional development and dissemination of best practice; and

iii) judges, who consider the Guidelines in dispute-settlement processes; for instance, as an aid to interpretation or as evidence of international best practice.

Lawyers working with or for international development agencies. Bilateral and multilateral development agencies can help promote responsible governance of tenure through law-related projects. These may involve assessing legal frameworks, providing technical assistance in law reform processes or supporting the implementation of existing law. Legal officers or advisors with development agencies can play an important role in supporting well-thought-out project design and implementation that consider the complexities of the law affecting the governance of tenure.

This guide does not directly target community groups who use the law to improve their tenure rights. However, those groups are a constituency of the Guidelines principles and this guide aims to reach them indirectly through the work of the various categories of legal professionals previously identified. The material included in this guide could be adapted and re-elaborated for direct use by community groups; for example, through the production of simplified and context-specific training manuals.

Through the use of non-technical language, this guide also hopes to be accessible to anyone interested in the legal implications of the Guidelines.

1.4 Outline of the guide

This guide discusses diverse law-related activities, which together illustrate the multiple ways in which the law can intervene in the governance of tenure. It consists of four substantive chapters, in addition to this introduction and a brief conclusion. Each substantive chapter tackles a specific aspect of the interface between law and the responsible governance of tenure. Each chapter logically follows on the previous one. All the chapters emphasize practical aspects, drawing as much as possible on real-life examples illustrated through use of boxes and lists of key recommendations.

Chapter 2 first elaborates on the nature and legal value of the Guidelines and considers their relationship to international law and voluntary instruments. It then discusses how the principles underpinning the Guidelines are in line with basic principles of professional responsibility applicable to legal professions in many jurisdictions, particularly commitments to upholding the rule of law. Finally, the chapter discusses how the Guidelines broaden the range of “legitimate” tenure rights to include rights that are not recognized by national law. Given the far-reaching implications of this approach, the chapter discusses in greater depth the concept of “legitimate tenure rights”.

Chapter 3 discusses how to draft or revise laws to promote responsible governance of tenure, providing guidance both on the content of legislation and on the lawmaking process itself. The chapter first discusses how to assess national law to determine levels of adherence to the Guidelines and provides guidance on ways to conduct assessments of national law in light of the Guidelines. It defines key concepts concerning lawmaking. It then provides illustrative examples of legislative design that advances aspects of the Guidelines, focusing on selected topics covered in the Guidelines. Finally, the chapter discusses guidance concerning public participation and transparency in lawmaking processes.

Chapter 4 discusses how to ensure that law is duly implemented. It explores the role of different actors in making law work in practice, including government administration, legal service providers supporting local holders of tenure rights and business lawyers. The chapter reviews multiple approaches to strengthen government administration to implement law and the Guidelines as well as tenure right-holder capacity to exercise rights and navigate procedures.

Chapter 5 discusses how to use the Guidelines in the context of the resolution of tenure-related disputes. It discusses access to justice for perceived violations of tenure rights, Guidelines’ direction on dispute settlement processes, and opportunities for judges and decision-makers to consider the Guidelines in the performance of their duties.

Chapter 6 outlines key action points for the legal professions to play an important role in promoting implementation of the Guidelines.

Legislation on land, fisheries and forests is available from FAO’s legislative database at http://faolex.fao.org/

2

The legal significance of the Guidelines

2. The legal significance of the Guidelines

This chapter discusses the nature and legal value of the Guidelines, and considers their relationship to other international obligations and voluntary instruments. It then discusses how the principles underpinning the Guidelines are in line with basic principles of professional responsibility applicable to legal professions in many jurisdictions, particularly commitments to upholding the rule of law. Finally, the chapter discusses how the Guidelines broaden the range of “legitimate” tenure rights to include rights that are not recognized by national law. Given the far-reaching implications of this approach, the chapter discusses in greater depth the concept of “legitimate tenure rights”.

2.1 What is the legal value of the Guidelines?

The Guidelines are an international instrument unanimously endorsed by the CFS (2012). The CFS is the top UN body responsible for global food security issues. The Guidelines have also received multiple expressions of support after their endorsement by the CFS, in such forums as the FAO Council (FAO, 2012) and Conference (FAO, 2013d), the United Nations General Assembly (UNGA, 2012), the Rio+20 Conference (Rio+20, 2012), the G20 (G20, 2012), and the Francophone Assembly of Parliamentarians (APF, 2012). As a result, the Guidelines enjoy considerable political authority.

In addition, the negotiation of the Guidelines at the CFS was preceded by two years of extensive consultations in different regions and with diverse stakeholder groups. This effort involved the organization of ten regional, one private sector and four civil society consultation workshops, reaching almost 1 000 people from over 130 countries. The participants represented government institutions, civil society, the private sector, academic institutions and UN agencies (FAO, n.d.). Non-state actors were also actively involved during negotiations with the CFS. As a result, the Guidelines enjoy considerable and widespread perceived social legitimacy, not only among governments, but also in civil society and among informed private sector actors.

Beyond issues of political authority and social legitimacy, however, lawyers are also likely to ask additional questions: How do the Guidelines affect the legal rights and obligations of the people I advise, and how do they affect the objectives that these people are pursuing? Do the Guidelines create binding legal obligations? Are they a soft-law instrument designed to provide guidance to states wishing to improve their governance of tenure? If the Guidelines are not binding, might they constitute a persuasive authority that shapes understanding of binding international law?

The Guidelines are not a legally binding document, as is evident from the word “voluntary” in their full title. In addition, the language of the Guidelines communicates their normative elements in terms of “should”, not “shall”. The Guidelines recognize that states will interpret and apply its provisions in accordance with their domestic legal systems and their institutions (par. 2.5). When endorsing the Guidelines in the CFS, states made it clear that the Guidelines were to be considered voluntary; paragraph 2.1 of the Guidelines states this explicitly (see Box 2.1). The decision to bring national law into line with Guidelines’ guidance is, from a legal point of view, a matter of choice for states.

The voluntary nature of the Guidelines does not mean that they are of no legal significance. Parts of the Guidelines reflect existing international law. Examples include the Guidelines’ recognition of the rights of indigenous peoples, which is consistent with treaties such as: the International Labour Organization’s (ILO’s) Convention No. 169 Concerning Indigenous and Tribal Peoples and the Convention on Biological Diversity; provisions on compensation, consultation and free, prior and informed consent (FPIC), which are broadly in line with international human rights jurisprudence; provisions concerning gender equity, which are consistent with the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW); respect for international humanitarian law in conflict situations (par. 25.1); and standards of transparency and government integrity that are broadly in line with the United Nations Convention Against Corruption (UNCAC).

Given the close interrelationship between tenure rights and human rights (Office of UN High Commissioner for Human Rights, OHCHR 2014), implementation of the Guidelines can constitute an important step towards the realization of human rights – including the right to adequate food, which is recognized by Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). More generally, the Guidelines affirm “principles of implementation” (par. 3B) that are broadly in line with the provisions of international human rights law; namely, human dignity, human rights, equity and justice, gender equality, rule of law, transparency and accountability.

And while the Guidelines are not binding, they are unequivocal that “States have the responsibility for their implementation, monitoring, and evaluation” (par. 26.1). States’ efforts to act upon the provisions of the Guidelines will often involve legal instruments such as where they enact or reform legislation. In those cases, the Guidelines provide an authoritative point of reference for states amending or adopting laws on the tenure of land, fisheries and forests.

The Guidelines may also have significance in the implementation of existing law. For example, judges and administrators could use the Guidelines to interpret national law, particularly where language is ambiguous (see Chapter 5). Developments such as the UN Guiding Principles on Business and Human Rights (see Box 2.2) are making business lawyers increasingly aware of the importance of considering soft-law instruments in commercial law practice

The Guidelines are part of a growing body of interrelated and mutually supportive international guidance on matters concerning food and agriculture. Relevant instruments include:

•The Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security (FAO, 2004b), adopted by the CFS and subsequently by the FAO Council in 2004 (FAO, 2004a);

•The Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (SSFG) (FAO, 2015f), endorsed in 2014 by the FAO Committee on Fisheries (COFI, 2014) and the FAO Council (FAO, 2014d) (see Box 2.3);

•The Principles for Responsible Investment in Agriculture and Food Systems, endorsed in 2014 by the CFS (CFS, 2014) and the FAO Council (2014d);

•The Rome Declaration on Nutrition (FAO & WHO, 2014b) and its companion Framework for Action (FAO & WHO, 2014a), adopted by the Second International Conference on Nutrition in 2014.

By addressing issues of governance of tenure in a holistic way, the Guidelines provide guidance that can help to advance the implementation of these multiple instruments. In fact, in their Principle 5 (“Respect tenure of land, fisheries and forests, and access to water”), the Principles for Responsible Investment in Agriculture and Food Systems specifically refer to the Guidelines. It is, therefore, important that lawyers working on issues covered by these soft-law instruments (agribusiness investments, small-scale fisheries, the right to food) are familiar with, and make good use of, the Guidelines.

In some contexts, international guidance has emerged at the regional level, too, such as the Framework and Guidelines on Land Policy in Africa. In these situations, lawyers and legal service organizations should consider both global and regional guidance (see Box 2.4).

The Guidelines cover a wide range of issues making it likely that states wishing to implement them will need time to do so. In some contexts, the scope of changes to national law, regulations and institutions spanning the multiple sectors that would be involved is simply too large to allow countries to implement the Guidelines overnight. A key first step in implementing the Guidelines involves a rigorous assessment of current levels of alignment across a range of issues, so as to identify areas needing reform.

2.2 Professional responsibility, rule of law and the Guidelines

Although the Guidelines are not binding law, several of the provisions of the Guidelines reflect standards of professional responsibility usually applicable to legal professionals. In several countries, for example, lawyers have a basic duty to uphold the rule of law and further the administration of justice. In addition, lawyers have duties of fairness, honesty and integrity as well as the duty to avoid conflicts of interest, as reflected in the International Bar Association’s (IBA’s) 2011 International Principles on Conduct for the Legal Profession. These obligations are owed to clients as well as to third parties and the general public.

In recent years, the UN has developed guidance on the notion of rule of law. Among other things, the UN definition of rule of law requires laws to be consistent with the norms and standards of international human rights. The UN definition also emphasizes accountability to the law, fairness in the application of law, avoidance of arbitrariness, and procedural and legal transparency (see Box 2.5).

The Guidelines explicitly affirm the rule of law as a “principle of implementation”; that is, an essential principle to be followed in implementing the Guidelines (par. 3B.7). The rule of law also shapes other Guidelines’ principles of implementation. For example, it is closely linked to transparency (par. 3B.8), and it is explicitly referred to in relation to accountability (par. 3B.9). The Guidelines also refer to respect for the rule of law in relation to specific issues, such as: delivery of tenure services (par. 6.9), land-based investments (par.12.12) and redistributive reforms (par. 15.4). Further, the Guidelines refer to several other concepts that are closely related to the rule of law and to standards of professional ethics, including provisions dealing with corruption and conflicts of interest (par. 6.9).

The Guidelines embody a concept of rule of law that is in line with the UN definition. According to the Guidelines, the rule of law requires laws to be “widely publicized in applicable languages, applicable to all, equally enforced and independently adjudicated”, and also “consistent with […] existing obligations under national and international law, and with due regard to voluntary commitments under applicable regional and international instruments” (par. 3B.7).

In line with the core elements of the UN definition of rule of law, the Guidelines include provisions on ensuring access to justice and effective means of dispute resolution (par. 3.1.4 and 4.9), providing for access to effective remedies (par. 3.2, 4.9, 14.2), holding people accountable for breaches of tenure rights (par. 3.B.9) and ensuring participation of affected tenure holders (par. 4.10, 5.5, 7.3, 13.6, 16.2). Many Guidelines’ provisions refer to ensuring transparency in legal rules and tenure transactions (par. 11.3, 11.4 12.3, 12.5).

The understanding that the rule of law requires adherence to international human rights norms and standards, accountability to the law and fair and transparent procedures means that the provisions of the Guidelines that embody these standards may constitute an essential element of the professional responsibility of lawyers to uphold the rule of law.

In addition, the duty of lawyers to avoid conflicts of interest may affect the ways in which the Guidelines are applied. For example, in carrying out consultations with affected communities in the context of proposed investment projects (Guidelines, section 12), lawyers need to exercise due diligence to avoid conflicts of interest that could occur when private investors pay the costs of the communities’ legal counsel (see Chapter 4).

The Guidelines call for professional associations to “develop, publicize and monitor the implementation of high levels of ethical behaviour”, and for tenure professionals to “adhere to applicable ethical standards, and be subject to disciplinary action in case of violations” (par. 6.8). The Guidelines also call on professionals to exercise due diligence in relation to tenure matters (par. 12.13). Guidance on specific approaches to due diligence, particularly for lawyers representing private sector actors, is provided in Chapter 4.

2.3 Social and legal legitimacy: understanding “legitimate tenure rights”

2.3.1 Social and legal legitimacy

The Guidelines promote responsible governance of tenure of land, fisheries and forests. “Tenure” is the way that land, fisheries and forests are held or owned by individuals, families, companies or groups. Tenure can encompass diverse “bundles of rights”; for example, the rights to occupy, use, develop, enjoy and withdraw benefits from the natural resources in question; the right to restrict others’ access to these resources; and/or the right to manage, sell or bequeath the resources.

Many lawyers are accustomed to defining tenure rights in terms of positive law; that is, law created by relevant lawmaking authorities under national constitutions. The Guidelines depart from this approach. The Guidelines explicitly consider as “legitimate” not only those tenure rights formally recognized by national law, but also those rights that, while not currently protected by law are considered to be socially legitimate in local societies (see par. 4.4. and, 5.3 and 7.1 and Table 2.1).

Recognizing and respecting all legitimate tenure rights is the first of several “general principles” of the Guidelines, followed by: safeguarding all legitimate tenure rights against threats and infringement; promoting and facilitating the enjoyment of legitimate tenure rights; and providing access to justice to deal with infringements of legitimate tenure rights (par. 3A). Recognition, respect and protection of legitimate tenure rights are also referred to in numerous other provisions of the Guidelines (par. 4.4, 4.5, 5.3, 7.1, 8.2, 8.4, 8.7, 9.4, 9.5, 11.6, 12.4, 12.6, 12.10, 12.15, 14.1, 16.1). The Guidelines pay special attention to the legitimate tenure rights of the most vulnerable (par. 7.1, 16.1), which, depending on context, may also be the least protected under national law.

The concept of “legitimate tenure rights” implicitly calls for lawyers to broaden the range of the tenure rights they take into account when analysing tenure claims. Given the prominence of the concept of legitimate tenure rights in the Guidelines and its far-reaching implications, the remainder of this chapter explains in greater detail what this notion means.

2.3.2 What are legitimate tenure rights?

The Guidelines do not provide a definition of legitimate tenure rights. Rather, they generally recognize both statutory and customary, formal and informal tenure rights as legitimate, and encourage states to acknowledge, document and respect all legitimate tenure rights in national law, policy and practice. The Guidelines suggest that states arrive at their own non-discriminatory definitions of legitimate tenure rights after a careful catalogue of all existing tenure governance systems currently operative in their country. The provisions of the Guidelines that provide guidance on the process for determining what is legitimate are presented in Box 2.6.

Several challenges affect the identification of all legitimate tenure rights. Land, fisheries and forests are more than just assets to be traded on the market. In many cultures and societies, land, fisheries and forests are at the heart of individual and community identity, culture, history and spirituality, as well as the basis of food security and livelihoods. As a result, tenure systems are often very complex and vary considerably, even within the same country, according to local terrain, culture, environment and the dominant livelihoods practiced. Defining socially legitimate tenure rights can pose real challenges when it comes to operationalization, as there may be, and often are, competing visions of legitimacy in a given society.

Analysis of what rights to count as “legitimate” is further complicated by the national or local political economy: prevailing perceptions about legitimate tenure rights may be influenced by the power structures and economic interests of the society in which one’s tenure claims are situated. In addition, “society” may be defined in multiple, overlapping ways – from a community practising and abiding by local rules, norms and practices, through to the country as a whole. Perceptions of legitimate tenure rights may differ in these local and national contexts. Also, which tenure rights are considered “legitimate” in a given context is a function of perceptions and policy decisions often shaped by powerful groups.

In addition to the procedural guidance that the Guidelines provide on how to identify legitimate tenure rights (Box 2.6), it is possible to elaborate a few points on the types of tenure rights that can be considered as legitimate based on the substantive provisions of the Guidelines.

2.3.3 Customary and indigenous rights are legitimate tenure rights

More than two billion people worldwide access resources through customary tenure regimes (United States Agency for International Development (USAID), 2011b). An estimated 90 percent of all land in Africa is held under customary tenure regimes, while almost 90 percent of the estimated 40 million indigenous peoples in Latin American hold land under customary tenure systems (Colchester et al., 2001). Customary tenure systems also apply to lands in Western Europe, such as rural commons in Spain, Portugal, Italy and Switzerland. Indigenous minorities in Europe, North America and Oceania also govern their lands, fisheries and/or forests according to custom (Alden Wily, 2012). Although the specificity of the tenure rules different countries or communities apply may diverge, the phenomenon of customary tenure is prevalent across a range of different legal systems.

In many contexts, communities administer, manage and transact their tenure rights primarily within the bounds of local, customary paradigms. In areas where state administration and infrastructures are absent or inaccessible, customary tenure systems are often the primary means of enforcing rights and resolving tenure disputes.

Customary tenure may be defined as the local rules, institutions and practices governing land, fisheries and forests that have, over time and use, gained social legitimacy and become embedded in the fabric of a society. Although customary rules are not often written down, they may enjoy widespread social sanction and may be generally adhered to by members of a local population.

Customary tenure systems are extremely diverse, reflecting different ecosystems, economies, cultures and social relations. However, they tend to embed tenure rights in social relationships and to place considerable emphasis on collective rights, vesting tenure rights with often multiple, overlapping and, therefore, “nested” social units (i.e. individual rights within households, households within kinship networks, kinship networks within wider “communities”; see Cousins, 2007, writing about trends in sub-Saharan Africa). Customary tenure systems may be associated with indigenous systems of shifting cultivation (e.g. USAID, 2011a, on Cambodia; and USAID, 2013, on upland Myanmar), but also pastoral resource use, communal forests and sacred or burial sites (see Alden Wily, 2005). Customary tenure regimes can also support highly intensified farming systems, such as those in parts of Ghana.

The Guidelines explicitly state that customary tenure rights can constitute legitimate rights. They call on states to recognize and respect “legitimate customary tenure rights that are not currently protected by law” (par. 5.3). They also provide guidance on how to recognize customary tenure rights (see Box 2.7).

Recognizing customary tenure rights as legitimate is relevant to fisheries as well as to land and forests. Some countries have enacted legislation that protects customary fishing rights (see Box 2.8).

2.3.4 Common property rights, use rights, tenancy rights, and overlapping and shared rights are legitimate tenure rights

Within both customary and statutory tenure systems, multiple and overlapping rights may govern the use of the same resource. For example, multiple rights to the same piece of land could include: the right to use the land for pasture or agriculture, possibly in different seasons; the right to use trees or collect firewood in the forest; the right to travel across the land or waters; or the right to drive cattle across an area to obtain water from a river. In certain circumstances and at particular times, a given piece of land may cater for multiple resource uses (i.e. pastoralism, farming, fishing) and users (i.e. farmers, pastoralists, herders), which may succeed one another over different seasons (Cotula, 2007; FAO, 2015e).

Tenure rights over common property resources (e.g. rangelands, fishing ponds, traditional forests), seasonal and otherwise temporary rights of access and use as well as tenancy and sharecropping rights can all be legitimate tenure rights for the purposes of the Guidelines (par. 7.1, 8.7, 8.8, 9.4, 10.3, 20.3; see also FAO, 2015e). It is often poorer and more vulnerable groups that hold these rights and, as discussed, the Guidelines pay special attention to the tenure rights of these groups.

Although there may be divergence in terms of the specificity of the tenure rules different countries or communities apply, the phenomenon of customary tenure is prevalent across a range of different legal systems. For example, paragraph 10.3 of the Guidelines reads as follows: “Whenever States provide legal recognition to informal tenure, this should be done through participatory, gender-sensitive processes, having particular regard to tenants. In doing so, States should pay special attention to farmers and small-scale food producers.” Some countries have enacted legislation to protect the tenure rights of tenants (see Box 2.9).

2.3.5 Women’s rights are legitimate tenure rights

In many cultural contexts, women’s tenure claims may hinge on their relationships with male relatives: in patrilineal systems, wives are expected to move onto their husband’s family’s lands after marriage and are, therefore, not usually allocated land by their own parents. Meanwhile, wives are generally not permitted to inherit their husband’s land, as the land is traditionally considered to belong to the husband’s family, clan or tribe and is, therefore, passed through the male bloodline from fathers to sons (Giovarelli, 2006). In matrilineal systems as well, women’s tenure claims hinge on their relationships to men as land inheritance passes from uncles to brothers through the female line.

Although many rural women have rights to access and use land, they are generally less likely than men to have control over it. In practical terms, this lack of control places many women in insecure and precarious situations: women who have only conditional access to land may lose it when their husbands die or when male family members unilaterally decide to sell it (Budlender and Alma, 2011). Such culturally ingrained marriage and inheritance rules can lead to the perpetuation of gender inequalities in tenure relations across generations (Guyer, 1987).

The Guidelines directly address gender inequities (see FAO, 2013a). For example, paragraph 3B.4 establishes gender equality as one of the principles for implementation, with the mandate to “ensure the equal right of women and men to the enjoyment of all human rights, while acknowledging differences between women and men and taking specific measures aimed at accelerating de facto equality when necessary. States should ensure that women and girls have equal tenure rights and access to land, fisheries and forests independent of their civil and marital status.”

When it comes to the tenure rights of women, there may, indeed, be a clash between different sources of legitimacy: if, on the one hand, legitimacy is to be determined through social acceptability and processes, these same processes and societal norms may not fully recognize gender equality when it comes to land. In practice, therefore, determining legitimate tenure rights while also respecting principles of non-discrimination, can pose important dilemmas. The Guidelines acknowledge the challenge and state in paragraph 9.6 that “where constitutional or legal reforms strengthen the rights of women and place them in conflict with custom, all parties should cooperate to accommodate such changes in the customary tenure systems”. In paragraph 9.2 the Guidelines exhort indigenous peoples and other communities with customary tenure systems that exercise self-governance of land, fisheries and forests to promote and provide equitable, secure and sustainable rights to those resources, with special attention to the provision of equitable access for women.

3

Using the Guidelines in lawmaking

3. Using the Guidelines in lawmaking

This chapter discusses how to assess national law in light of the Guidelines, and how to draft or revise laws to promote responsible governance of tenure. It provides guidance both on the lawmaking process and the content of the legislation itself. The first section describes how to undertake a legal assessment of national legislation to determine how best to align national laws with the Guidelines and ensure harmonization within the overarching legal framework. The chapter then describes various strategies to ensure that national lawmaking processes are comprehensive and participatory. The final section concludes by providing illustrative examples of existing legislation that advances aspects of the Guidelines, including: recognition of customary tenure rights; tenure restitution and redistribution; transparency, consultation and FPIC; environmental and social impact assessments; and expropriation and compensation.

3.1 Assessing national law based on the Guidelines

3.1.1 Why undertake an assessment of national law?

A legal assessment is an analysis of national law using the Guidelines as a benchmark. Assessing a country’s national legal framework in light of the Guidelines is an important step towards implementing the Guidelines. An assessment allows stakeholders to identify the strengths, weaknesses, gaps and challenges in existing legal frameworks (see Box 3.1). After completing an assessment, lawmakers may then draft or amend laws to ensure alignment with the Guidelines’ principles.

Assessments of national law are a key component of the Guidelines’ practical application. For example, a critical assessment of national law in light of the Guidelines can help:

•legal professionals working for or with states to identify necessary legal reforms or strategies to ensure more effective implementation of existing laws;

•public-interest legal service organizations to identify avenues for advocacy to strengthen tenure security and promote effective, transparent and equitable enforcement of existing legal protections for tenure rights;

•business lawyers to meet due diligence standards when representing clients in transactions with governments, legitimate tenure right holders and all relevant stakeholders.

In addition to promoting alignment between the Guidelines and the substantive provisions of national law, legislative assessments may lead to wider improvements in legal frameworks. For example, assessments may help to identify laws that are obsolete, ambiguous, complicated or inconsistent. Ambiguity in laws may allow actors to exploit opportunities for conflicts of interest or corruption, or lead to the marginalization of social groups. An assessment may also help to identify aspects of the legal framework that are not being properly implemented, provide an opportunity for understanding impediments to implementation and pave the way to administrative as well as legislative reform. In facilitating the identification and remedy of such weaknesses, the assessments may help to improve governance of tenure overall.

Lawyers advising businesses should conduct more focused forms of a legal assessment as part of their due diligence process. According to the UN Guiding Principles on Business and Human Rights (see Box 2.2), business enterprises should carry out human rights due diligence, which should involve “assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed” (OHCHR, 2011; see also De Schutter et al., 2012). The Guidelines emphasize the important connections that exist between tenure rights and human rights (e.g. par. 3.2) and assessments pertaining to the Guidelines may expose areas of human rights concern as well as other relevant matters in the governance of tenure of land, fisheries and forests.

3.1.2 What laws should be assessed?

The range of laws relevant to the governance of tenure of land, fisheries and forests is very broad, going well beyond legislation that is aimed at the regulation of these resources. National law typically consists of diverse legal instruments. Most countries have adopted a written constitution and have passed “primary” and “secondary” legislation. A constitution establishes ground rules and fundamental rights with which all legislation (primary and secondary) must comply. The legislative branch of government usually passes “primary” legislation (Statutes or Acts of Parliament) while government agencies in the executive branch often have the power to adopt “secondary” legislation, such as regulations necessary for the implementation of primary laws. Secondary legislation must comply not only with the constitution, but also with primary legislation. Government agencies may also develop circulars, manuals and other internal documents. These provide guidance to officials on how to interpret and apply primary and secondary legislation (FAO, 2013a). Depending on the jurisdiction, judicial decisions can also create law or establish authoritative interpretations of legislation.

The full set of legal instruments in this hierarchy should be considered during an assessment, and some types of legal instruments may provide a firmer legal basis for protection than others. While constitutional provisions protecting legitimate tenure rights are ideal, as they are more difficult to reverse than those from ordinary legislation, protections for tenure rights can be found in a wide range of legal instruments. For example, strong protections for women’s land rights may be found in national inheritance laws, or family laws. Protections provided by secondary legislation alone are easier to repeal, and as such they tend to be less secure than safeguards entrenched in the constitution or in primary laws. Actors undertaking legal assessments should consider all potentially relevant legislation.

3.1.3 How do we undertake an assessment?

The Guidelines provide a basis for conducting assessments of laws relating to the governance of tenure. These assessments provide the basis upon which states can operationalize core elements of the Guidelines. The methodology used may differ depending on who is carrying out the assessment (e.g. legal professionals working for or with states, public-interest legal service organizations or business lawyers). The focus here is on legal assessments led by legal professionals working for or with states. However, there are commonalities across various approaches and diverse settings, and legal assessments led by public-interest legal service organizations or business lawyers are also touched upon. Broadly speaking, there are two main ways to assess whether national laws adhere to the Guidelines:

•Assess the alignment of relevant national law with the Guidelines’ general principles (par. 3A) (see Box 3.2) and principles of implementation (par. 3B). Although general, these principles have formed the object of much normative and assistance work by international development agencies promoting responsible governance. An assessment based on these normative principles may help to identify overarching challenges and gaps in national legal frameworks, as well as assets and opportunities that could be built upon. Specific indicators based on the different sections of the Guidelines can then be selected to provide further substance to the principles.

•Assess alignment with each of the Guidelines’ specific provisions. Assessing alignment with the Guidelines’ broad principles is an important step, yet to ensure a complete and rigorous assessment, actors should also assess national laws’ adherence to the substantive tenure-specific provisions of the Guidelines. One example of this approach is the work of an NGO coalition in the Philippines (see Box 3.3).

These two approaches can be complementary. For example, whenever the Guidelines provide limited detail, guidance can be derived from applying the general principles and the principles of implementation. In addition, both general and specific assessments are possible. A general assessment would examine adherence of the national legal system as a whole. It may help to identify priorities for further analysis and for reform. Specific assessments focus on identified parts of the legal framework; for example, in terms of sector (land, fisheries, forestry) or topics (such as land registration, women’s land rights, expropriation or land-based investments).

Specific assessments can help where stakeholders have already identified particularly pressing problems and are looking for possible ways forward. Compared to general assessments, which would need to cover a wide range of topics, specific assessments create opportunities for more fine-grained analysis and detailed recommendations. General assessments are also likely to be costly and time-consuming, so specific assessments are likely to prove more realistic in many contexts. Being clear on the specific purpose of the assessment can help to align methods and stakeholder engagement strategies.

To be effective, an assessment should be comprehensive and thorough, which may entail significant investments of time and resources. On the positive side, there is much experience that may be built upon, including pilot projects designed to test legal assessment methodologies such as the FAO Legal Assessment Tool (LAT) (formerly known as Legislation Assessment Tool) for gender-equitable land tenure and other legal assessment tools (see Box 3.4). The World Bank-led Land Governance Assessment Framework (LGAF), which includes a legal component (World Bank, n.d.) is another example of an assessment tool that may be used as a vehicle for assessing alignment with the Guidelines. FAO research suggests that the LGAF covers many of the key issues in the Guidelines and could thus be a useful tool for assessing land and forestry governance and, to some extent, alignment with the Guidelines (Tonchovska and Egiashvili, 2014). It should be noted, however, that LGAF follows its own processes and purposes and predates the Guidelines.

When conducting assessments for a given country and sector, sector-specific legal instruments pertaining to or affecting tenure should be considered. For an assessment of the legal framework for fisheries, for example, the SSFG, discussed in Chapter 2, should be used alongside the Guidelines as they provide context-specific references that are only generally addressed in the Guidelines. A complete assessment of national laws concerning fisheries tenure should also consider relevant treaties ratified by the state concerning the management of fisheries resources.

In the context of law reform, it can be very useful to assess individual acts or bills against relevant sections of the Guidelines. This assessment has been done, for instance, in the Philippines regarding the National Land Use and Management Bill (Lopez and Demaisip, 2014) and in Sierra Leone where FAO provided comments in 2015 regarding the draft National Land Policy.

3.1.4 Who should take part in the assessment?

To ensure the effective use of any assessment, efforts should be made to develop a sense of national ownership over the resulting analysis. When public authorities undertake a legal assessment, they should have respected national professionals lead it and include members of all relevant stakeholder groups in the process. Depending on the context, those involved may include diverse government agencies, NGOs, rural producer organizations, associations of indigenous peoples and rural communities, business lawyers, academics, experts and concerned citizens. Public authorities should also make special efforts to ensure the participation of women, youth, elders, members of minority groups and marginalized communities. These groups may have important insights into how national laws may be strengthened to ensure that the legitimate tenure rights of all are protected.

Promoting public participation in state-led legal assessments will ensure that the assessment and all resulting changes to the national legal framework will more accurately and effectively recognize, respect and protect legitimate tenure rights. Establishing what tenure rights are considered legitimate in a given society is a precondition for assessing whether national law adheres to the Guidelines, and requires participatory engagement with organizations representing the interests of tenure right holders.

3.1.5 How to use the outcomes of an assessment?

Once a legal assessment is complete, depending on its focus, it may be used to support a range of activities and processes. Governments may use an assessment as a basis for legislative or regulatory drafting or to develop priorities for national development and sectoral planning. Law reform commissions may use an assessment to review existing legislation and develop proposals for modifying existing law. An assessment might also be used to devise practice guides or standards for lawyers working in tenure registries or other state administrative bodies.

Legal professionals working for or with the state, and business lawyers, might use the outcomes of a legislative assessment when negotiating investment deals (par. 12). They can use the assessment proactively to mitigate gaps in national laws and regulations, and, in so doing, to address potential risks. For example, states may negotiate with companies robust contractual provisions requiring rigorous impact assessments (par. 12.10) in places where effective environmental legislation is yet to be enacted or is still in the process of being adopted.

Public-interest legal service organizations may use the legal assessments as the basis for advocacy campaigns, calling for legal reform to bring national law into alignment with the Guidelines. They may also proactively shape their on-the-ground interventions in such a way as to pilot practices included in the Guidelines but missing from national law, creating an evidence base that can show national policy-makers the benefits of adherence to the Guidelines’ principles.

Lawyers working with or for international development agencies may use the legal assessments to shape their financial and technical support programmes. For example, an assessment may help donors establish funding priorities relevant to tenure governance in a given nation: after analysing a legislative assessment, donors may strategically fund efforts to align national policy with the Guidelines, or support grassroots efforts to pilot interventions that create an evidence base for policy changes that strengthen legitimate tenure rights.

3.2 Lawmaking: concepts, actors, instruments and processes

Once an assessment has been completed, policy-makers and relevant government agencies should take steps to amend existing legislation or draft new laws in alignment with the Guidelines (see Box 3.5 for examples of provisions in the Guidelines which are relevant to lawmaking). Such efforts should not only include primary legislation, but also implementing regulations, decrees, manuals and clear guidance on how to apply the new and amended laws (FAO, 2013a). This section addresses questions of how best to undertake lawmaking processes.

3.2.1 Ensure quality lawmaking

The quality of the lawmaking process matters significantly, as the process of how a law or policy is drafted will impact the quality of the final legislation. Even a well-written law might undermine good governance of tenure if it was drafted without sufficient public participation. While it may take more time and resources up front, drafters who undertake extensive research and conduct citizen consultations on tenure issues in the country will create more effective legislation, better suited to various real-life contexts and tenure situations. Such well-researched laws will be more cost-effective and practical to implement over the long term.

Poorly drafted or researched laws may negatively affect the governance of tenure in important ways. Laws that are unclear, ambiguous or inconsistent with other legal provisions can make it more difficult for tenure holders to exercise and protect their tenure rights. Poor legal drafting may also create excessive room for administrative discretion that provides opportunities for corruption and makes even formally recognized tenure rights vulnerable. For example, where concepts such as “public purpose” or “national interest” are defined too broadly or unclearly in national expropriation laws, public authorities may compulsorily acquire land in ways that unjustly undermine citizens’ tenure rights (FAO, 2009a).

In other cases, clearly written legislation may be at odds with administrative agencies’ capacity to implement its provisions. If a ministry of a government department does not have the technical, financial or human resources to properly implement tenure laws and regulations, then the law may go unimplemented, or be implemented improperly, creating opportunities for corruption and rent-seeking. Well-drafted, but poorly implemented, laws may undermine faith in the national legal system and respect for the rule of law.

To address these challenges, the Guidelines call for states to develop laws that are clearly written and take into account the capacity of national agencies to implement them (par. 5.5). To promote consistency in drafting processes and approaches, handbooks on legislative drafting might be developed to provide guidance to officials working to draft laws or regulations. Field piloting of draft laws and regulations (as was done in Samoa and Burkina Faso; see Box 3.6) can help to tailor interventions to local contexts and to test approaches before formally enshrining them in the statute books (FAO, 2013a). It is also important to create feedback loops between law reform and implementation: once legislation is passed, monitoring implementation and impacts can provide important insights for future legislative processes.

3.2.2 Considering the legal system as a whole

Legal instruments usually form part of a complex network of legislative and regulatory instruments, sometimes referred to as the national legal framework. International treaties may also establish obligations that have a bearing on law reform. In preparing new legislation, legal drafters should consider existing national laws that may need to be amended or repealed, along with ratified international agreements that must be complied with.

Indeed, given the linkages among different legal instruments within a country’s legal framework, understanding the implications of one legal instrument may require analysis of a much wider range of laws (see Box 3.7). Also, amending one tenure law may necessitate corresponding amendments to a number of other, related national laws. These laws may include contract law, environmental laws, water laws, inheritance laws or local government laws, for example.

Given this situation, the Guidelines are clear that tenure reform exercises cannot occur in isolation from the rest of the national legal system. When preparing a new law, authorities should consider how new or amended legislation would interface with both other relevant national laws as well as the country’s international obligations. While the Guidelines call for states to “provide and maintain policy, legal and organizational frameworks that promote responsible governance of tenure of land, fisheries and forests”, they make clear that such reforms “are dependent on, and are supported by, broader reforms to the legal system” (par. 5.1) and should be “consistent with their existing obligations under national and international law, and with due regard to voluntary commitments under applicable regional and international instruments” (par. 5.2).

Because of the complexity of a country’s legal framework and the intrinsic context-specific nature of tenure issues, the importation of another country’s tenure laws without extensive adaptation to the national legal framework – and local context – is inadvisable (Bruce et al., 2006; Byamugisha, 2013).

Furthermore, a proper lawmaking process will not only amend relevant related laws, but also repeal obsolete laws and specific provisions within otherwise good laws. Failure to repeal obsolete laws may give rise to legal uncertainty and conflicts of law, which may undermine the drafters’ intent and allow opportunities for corruption, rent-seeking, inconsistent application and bureaucratic obstacles.

It is good practice for a new law to identify the laws or provisions that must be repealed to ensure a consistent, well-harmonized legal framework for the governance of tenure. To simply state that a law repeals “all prior legislation inconsistent with the new law” can be problematic because such blanket statements require implementers to have the technical expertise to identify inconsistent pre-existing laws during some unspecified future process (Bruce et al., 2006). Ideally, the legal assessment undertaken before the legal drafting process will have already identified all necessary repeals and modifications and can feed directly into the “Repeals” sections of any new or amended tenure laws.

Finally, any legal drafting process must consider a country’s international obligations, such as those under treaties the country has ratified, and ensure that the new law is aligned with these obligations (FAO, 2007). Failure to consider existing international obligations when preparing new tenure legislation risks putting the state in breach of these obligations. A breach may expose a state to legal action before international courts, such as the International Court of Justice (ICJ) or the International Tribunal for the Law of the Sea (ITLOS).

Furthermore, breach of certain treaties might expose states to significant liabilities. For example, many international investment treaties allow companies to bring claims against governments for alleged breaches (Cotula, 2014a and 2015), so redistributive reform that expropriates tenure rights held by foreign investors covered by an investment treaty would need to consider the standards of treatment established by the treaty(Peterson and Garland, 2010; Cotula, 2015). Where newly proposed national law standards are inconsistent with existing international treaties, states can seek to renegotiate the terms of the treaty or attempt to terminate it, although this is often more difficult for states to do than changing national law.

Effective coordination of various simultaneous legislative drafting processes is also important. When various ministries draft laws related to tenure governance without coordination and careful efforts to ensure harmonization, the resulting laws may include inconsistencies and ambiguities. To avoid these problems, lawmaking processes should establish mechanisms for effective interministerial and donor coordination as well as timely cross-agency lesson-sharing opportunities.

3.2.3 Promoting participatory lawmaking processes

Public participation in lawmaking is essential. Beyond the technical aspects of legislative drafting, lawmaking on the governance of tenure is a highly political endeavour influenced by vested interests and characterized by power imbalances based on gender, generation, status, income, wealth and socio-economic interests. To ensure that tenure governance laws protect all legitimate tenure rights, lawmakers should create opportunities for citizens from a broad spectrum of society to have their voice heard throughout lawmaking processes.

Public participation will also improve the quality of law, as the involvement of diverse stakeholders can help to ensure that legislation is tailored to local contexts. Public participation can also increase the legitimacy of a new law: if a citizenry has been consulted and their interests and needs appropriately factored into the final text of the law, the resulting sense of ownership by broad sectors of society may make it easier for governments to implement and enforce the law’s mandates effectively. Conversely, if citizens feel that the law does not adequately reflect their needs, they are more likely to ignore the law or to operate in black or grey markets, ultimately frustrating the achievements of the objectives pursued by the law.

The Guidelines call on states to “develop relevant policies, laws and procedures through participatory processes involving all affected parties, ensuring that both men and women are included from the outset” (par. 5.5). The Guidelines also encourage both state and non-state actors “to provide technical and legal assistance to affected communities to participate in the development of tenure policies, laws and projects” (par. 9.10).

There is growing experience with promoting public participation in lawmaking processes. Lessons learned from good practice (see Box 3.8) highlight a few important considerations. To ensure effective, meaningful stakeholder participation in lawmaking processes:

•Consultations with national stakeholders and diverse groups of citizens should be held at the beginning of a lawmaking process and then continue throughout, all the way to legislative debate on the parliamentary floor. Early consultations can help to gather data about what kinds of reforms are necessary and allow for proactive, rather than reactive, contributions that can help to strengthen the resulting legislation.

•Use of clear and accessible language in legislative drafting is critical; if stakeholders cannot understand a draft law because of the overly technical, legalistic way it has been written, they will not be able to comment appropriately.

•Drafts and related documents should be released in a timely manner and in forms that facilitate meaningful consultation. Multiple communication channels – such as national newspapers, radio, the internet and television – should be used.

•Sufficient time should be given for the stakeholders to examine the proposals and submit comments; if few comments are received, deadlines should be extended.

•Consultations should be held at the local level; consultations held only in the capital city are less likely to include the voices of the most poor and marginalized rural stakeholders.

•States should not impose overly stringent requirements for public participation in lawmaking efforts. Formal requirements will likely create obstacles to the broadest possible participation and impede the inclusion of the most vulnerable groups, whose resource constraints should be considered when framing any formality requirements.

•Capacity-development efforts may be necessary to ensure that the national citizenry is equipped to understand the proposed legislation – such as the potential positive and negative ramifications of each section or article – and to comment, accordingly.

•If only local and regional leaders of various stakeholder groups are convened, mechanisms should be established to ensure that these leaders represent the interests of their stakeholder group and are accountable to their constituents.

The ministry or agency driving the law-drafting process often has primary responsibility for identifying and facilitating the involvement of relevant stakeholders at the local, regional and national levels. Public-interest legal service organizations can play an important role in facilitating grassroots participation in consultative processes, including: disseminating information within communities living in remote areas; involving groups that are often more difficult to reach, including women, youth, and traditionally marginalized people; improving awareness about the rights and procedures outlined in the new law (to ensure that stakeholders are well-informed); convening discussion groups to ensure that stakeholders are prepared to speak about their interests at public consultations; and ensuring that stakeholders’ logistical needs are met (for example, guaranteeing that they have transportation to arrive at a local consultation on time).

Failure to carry out consultations could have serious consequences resulting, for instance, in a law being struck down by a constitutional court (Constitutional Court of Colombia. Decision C-030/08, 23 January 2008). Once consultations have taken place, a report should be provided to lawmakers and made publically available. The report should record the consultation outcomes and how the consultations have affected the draft law; that is, what provisions have been inserted or altered further to the consultations (Office of the Attorney General – Samoa, 2008).

3.3 Reflecting the Guidelines into law

Since the CFS endorsement of the Guidelines in 2012, several countries have begun to review their legislation in light of the Guidelines (FAO, 2014b), while others are in the process of drafting legislation that is in alignment with the Guidelines. As those laws are drafted and reviewed, it is useful to turn to various countries’ existing tenure laws for positive examples of how to translate the Guidelines into law. This section will explore seven specific areas of law, prioritizing topics that have formed the object of particularly lively policy debates in recent years including:

•recognition of customary tenure rights;

•tenure restitution and redistribution;

•transparency;

•consultation and FPIC;

•environmental and social impact assessments; and

•expropriation and compensation.

3.3.1 Recognition of legitimate tenure rights, including customary rights

As discussed in Chapter 2, the Guidelines call for the legal recognition of all legitimate tenure rights. Examples of relevant Guidelines’ provisions are provided in Box 3.9. The governance of tenure of land, fisheries and forests is often influenced by local, customary or indigenous tenure systems. While tenure rights based on customary systems are often considered to be legitimate at local and national levels, their degree of legal recognition varies depending on the jurisdiction.

The Guidelines call for states to “ensure that policy, legal and organizational frameworks for tenure governance recognize and respect, in accordance with national laws, legitimate tenure rights including legitimate customary tenure rights that are not currently protected by law; and facilitate, promote and protect the exercise of tenure rights” (par. 5.3). As such, implementing the Guidelines requires ensuring that national law recognizes, respects and protects legitimate customary tenure rights.

In order to recognize, respect and protect customary tenure rights, national legislation should:

1.Recognize and protect the full range of tenure rights. National law should define customary tenure rights in ways that allow for evolution, flexibility and adaptability over time, according to local needs. A law should allow for the full range of local customary tenure paradigms to be expressed and practised (i.e. not only that of the dominant tribal, ethnic or religious group), while also setting out restrictions that impose basic human rights standards on customary practices; protect against intracommunity discrimination; and ensure alignment with the national constitution (par. 5.3, 8.2, 9.5, 9.6).

2.Make all legitimate land rights equal in weight and stature to “formal”, certified tenure rights. A law should recognize that customary and indigenous tenure rights are equal in validity and weight to any rights that have been granted by state agencies, whether or not they have been registered (FAO, 2010).

3.Establish administrative processes that are simple, clear, streamlined, local, and easy for rural communities to use to claim and defend their tenure rights. To ensure usability, laws should create governance structures and processes that are: low cost both to the state and for users, highly accessible and leverage local individuals’ intimate knowledge of local conditions (par. 6.6, 10.4, 11.3).

4.Explicitly protect women’s tenure rights and establish women’s right to hold tenure rights. A law that seeks to integrate customary and statutory tenure systems should clarify that women (married, unmarried, divorced, widowed) may hold and own tenure rights. Lawmakers should also reform other relevant laws to ensure consistency across legislation; and women’s independent tenure rights should be enshrined in inheritance and family laws and ideally in national constitutions. Laws should require that the name of all spouses and dependents be put on any formal registration of family property. Laws can also place an affirmative duty on local administrators overseeing a tenure transaction to ensure that the transaction does not undermine women’s tenure rights. To ensure women have a role in community-wide decision-making concerning tenure rights, laws can also require that women hold a certain percentage of the positions on local resource governance bodies (par. 3B.4, 4.6, 5.4, 7.1, 7.4; and FAO, 2006b)

5.Where tenure is shared or held in common, vest ultimate tenure rights in all community members as a coherent group. This may involve issuing registration certificates, titles or deeds in the name of the community (rather than the names of individual community members), and creating an enforceable fiduciary duty between tenure management bodies and community members (par. 9.2, 9.4, 9.7, 9.8; see also the forthcoming FAO technical guide on the commons).

6.Explicitly protect communal areas, customary rights of way and other shared use and access rights (par. 8.3). As competition for scarce land and natural resources intensifies, it is important that the range of tenure rights protected by law include communal rights and customary rights of access and rights of way – especially to shared water points like springs and rivers, community forests, grazing lands and other natural resources that are rapidly increasing in value.

Law reforms adopted in a number of countries provide examples of efforts to reform legislation in these directions (see Box 3.10). For example, land legislation in Mozambique, Uganda and the United Republic of Tanzania recognizes customary rights and grants them legal status irrespective of whether or not they have been formally registered.

The Guidelines indicate that protections for customary and indigenous tenure rights must be balanced with provisions for gender equality (par. 3B.4, 5.3, 5.5 and 10.1) and respect for human rights (par. 2.2, 3.2, 3B.4, 4.1 and 4.8). For example, in the Philippines, the Indigenous Peoples Rights Act of 1997 protects the rights of indigenous peoples but only “within the framework” of that country’s Constitution. The Act requires the state to guarantee that indigenous peoples will “equally enjoy the full measure of human rights and freedoms without distinction or discrimination” (Section 2), but requires non-discrimination on grounds of gender in accordance with international human rights instruments and the Constitution (Section 21).

According to Guidelines paragraph 5.3, national laws should not only recognize, but also protect, legitimate tenure rights. Effective protection would require, among other things:

•clearly defining and publicizing all categories of legitimate tenure rights (par. 8.2);

•formally recognizing all legitimate tenure rights and providing legal documentation of those rights (par. 8.2, 9.4, 10.1);

•ensuring that state administrative systems are equipped to process applications for the formalization of all legitimate tenure rights;

•keeping records of all legitimate tenure rights together in one recording system, or in several systems linked by a common framework (par. 8.4);

•ensuring the availability and accessibilities of bodies providing remedies to ensure that tenure rights are respected (par. 4.9 and 21.1);

•providing access to justice to holders of all legitimate tenure rights who believe that their tenure rights are not being recognized (par. 3.1.4, 7.3);

•protecting legitimate tenure rights against forced evictions and unlawful dispossession (par. 3.1.2, 4.5, 9.5);

•ensuring that business enterprises respect all legitimate tenure rights, and that large-scale transactions of tenure rights do not compromise legitimate tenure rights (par. 3.2, 12.10);

•recognizing the legitimate tenure rights of refugees and displaced persons; and

•granting tenure right holders the right to fair prior compensation if tenure rights are forcibly taken (par.16.1).

3.3.2 Tenure rights system reform: redistribution and restitution

The Guidelines also provide guidance on lawmaking related to redistributive tenure reform and the restitution of tenure rights that were dispossessed in the past. For example, the Guidelines provide that, where states choose to implement redistributive reforms, they should define the objectives of the reform programme and its intended beneficiaries and “develop policies and laws, through participatory processes, to make them sustainable” (par. 15.5). Redistribution programmes should “ensure that policies and laws assist beneficiaries, whether communities, families or individuals, to earn an adequate standard of living from the land, fisheries and forests they acquire”. They should also “ensure equal treatment of men and women in redistributive reforms” and “revise policies that might inhibit the achievement and sustainability of the intended effects of the redistributive reforms” (par.15.6).

Land redistribution should “follow the rule of law”, and those who lose tenure rights to redistributive reform “should receive equivalent payments without undue delay” (par. 15.4). The Guidelines also call for transparent and accountable reform processes, and for “due process and just compensation according to national law” (par.15.9; see also par.16.1 and 16.3).

In relation to the restitution of tenure rights, the Guidelines provide that national legislation should establish clear, transparent processes and that restitution can be delivered in two possible forms: whenever possible, the original parcels or holdings should be returned to those who suffered the loss; where this is not possible, states should “provide prompt and just compensation” (par. 14.2). Compensation may be monetary or “in kind” through the allocation of alternative parcels or holdings and should ensure “equitable treatment of all affected people” (par. 14.4). In addition, the provisions of the Guidelines concerning redistribution and restitution emphasize the need for states to act consistently with their obligations under applicable national and international law (par. 14.1 and 15.4).

Over the years, many countries have enacted legislation aimed at redistributing or restituting tenure rights, particularly with regard to land. From the 1930s to the 1970s, land reform efforts like Mexico’s ejido programme transformed parts of the Latin American countryside, though implementation often fell short of expectations. More recently, Latin American countries such as Colombia have enacted legislation on land restitution, and former Soviet Republics such as Azerbaijan have legislated to privatize former state and collective farms, and allocate land to farmers. In South Africa, constitutional provisions and implementing legislation were adopted to return land to black farmers who were dispossessed during apartheid, and to redistribute land to poorer groups. Reform programmes are not limited to land, however. In New Zealand, for example, the formal restitution of fishing rights aimed to redress the government’s abrogation of an 1840 treaty that reserved fishing rights to the Māori over local fisheries (see Box 3.11).

3.3.3 Transparency

Transparency features prominently in the Guidelines as an essential principle of implementation (par. 3B.8). Transparency applies to multiple issues, including transparency of policies, laws and procedures as well as all transactions in tenure rights (par. 3B.8, 5.5, 12.3, 12.5). The enactment of legislation mandating transparent administration and transactions of tenure rights can support efforts to reduce rent-seeking, corruption and mismanagement.

Such legislation may be useful for business lawyers who, seeking to reduce their clients’ risk, can expect transparent transactions and negotiations with government actors. Transparency laws may also be essential for public-interest legal service organizations working to protect community or individual land rights. Examples of transparency legislation can be found in Box 3.12.

3.3.4 Consultation and free, prior and informed consent (FPIC)

The Guidelines contain multiple provisions calling for consultation with legitimate tenure right holders and, where indigenous peoples are involved, their FPIC in instances of public allocation of tenure rights and transactions with investors.

The Guidelines define consultation as follows: “Engaging with and seeking the support of those who, having legitimate tenure rights, could be affected by decisions, prior to decisions being taken, and responding to their contributions; taking into consideration existing power imbalances between different parties and ensuring active, free, effective, meaningful and informed participation of individuals and groups in associated decision-making processes” (par. 3B.6).

Where indigenous peoples are involved, the Guidelines provide that “States and other parties should hold good faith consultation with indigenous peoples before initiating any project or before adopting and implementing legislative or administrative measures affecting the resources for which the communities hold rights. Such projects should be based on an effective and meaningful consultation with indigenous peoples, through their own representative institutions in order to obtain their free, prior and informed consent under the United Nations Declaration of Rights of Indigenous Peoples and with due regard for particular positions and understandings of individual States” (par. 9.9).

In relation to proposed investments, for example, the Guidelines call for states to ensure that investments are consistent with the principles of consultation and participation (par.12.5, 12.9). Where proposed investments affect indigenous peoples, consultations should aim to obtain their FPIC (par. 9.9, 12.7). To give effect to this guidance lawmakers should include provisions in tenure laws that require that affected populations (including, for example, women, youths and those holding hunting and fishing rights) be consulted before the state allocates land, fisheries or forest tenure rights to investment ventures, infrastructure projects or conservation efforts.

The concept of FPIC has a continuous, rather than one-off, character, and indigenous peoples can have the right to say no to a project. Conducting FPIC-type processes can constitute a best practice that can usefully be followed by all community consultations. The process can involve negotiation between communities and outsiders resulting in mutual agreements. (See FAO, 2013e).

Experience shows that in contexts characterized by vested interests and power asymmetries, implementation of consultation or FPIC requirements may fall short of expectations. Legislation can help to address these issues, for example through mechanisms to ensure that consultations:

•are participatory, including a significant majority (e.g. at least 70 percent) of a community’s residents;

•occur in the local language and allow all community members to ask as many questions as they would like;

•include a full presentation about the planned investment or project, the anticipated financial profits and the benefits to be paid or provided to the community in exchange for use of local lands, fisheries and forests;

•allow communities an authentic opportunity to reject the proposed project;

•are duly documented, the consultation outcomes recorded and result in a binding agreement between indigenous peoples or local communities, the investor and, if appropriate, the relevant government (FAO, 2013e).

To ensure that community consultations are properly conducted and that authentic FPIC is attained, lawmakers can also include legal provisions in relevant legislation that:

•require that investors or government agencies seeking lands, fisheries and forests establish an independent grievance mechanism where stakeholders can raise concerns that emerge throughout the project’s lifetime;

•create conflict-resolution procedures that provide access to an independent mediator and appropriate remedies, including return of tenure rights and payment of compensation (FAO, 2013e); and

•render void any investment plan or community-investor contract that was signed in bad faith and without proper consultation as required by law.

Examples of legislation dealing with consultation and/or FPIC in Ecuador, Mozambique and the Philippines can be found in Box 3.13 below.

3.3.5 Environmental and social impact assessments

The Guidelines recommend that environmental and social impact assessments be carried out for all proposed tenure concessions and investment ventures: “When investments involving large-scale transactions of tenure rights, including acquisitions and partnership agreements, are being considered, States should strive to make provisions for different parties to conduct prior independent assessments on the potential positive and negative impacts that those investments could have on tenure rights, food security and the progressive realization of the right to adequate food, livelihoods and the environment” (par. 12.10).

In addition, the Guidelines state that “non-state actors including business enterprises …should include appropriate risk management systems to prevent and address adverse impacts on human rights and legitimate tenure rights” (par. 3.2).

Lawmakers seeking to ensure against potential future negative impacts of investment projects may include clear legal requirements for environmental and social impact assessments in relevant national legislation. Such legislation can: regulate the process, modalities, timing and consequences of such assessments, requiring that impact assessments are carried out at an early stage of any investment project; consider alternative options and plans that may reduce risk and negative impacts; and include provisions for transparency and stakeholder participation in the process (Cotula, 2014a).

To ensure that impact assessments are independent – that is, not influenced by the party covering its costs – legislation might require that investors put funds for assessments into an independently-run account, and that a neutral committee comprised of relevant stakeholders hires and supervises the social scientists undertaking the assessments. Finally, legislation can require that the results of any environmental and social impact assessment are published widely in a form easily understandable to the local public, including in low-literacy local and regional languages, and publicized over the radio and various other forms of non-written media.

Countries such as Guinea-Bissau and India have adopted legislation requiring social and environmental impact assessments (see Box 3.14).

3.3.6 Expropriation and compensation

Expropriation is the act whereby government agencies acquire tenure rights for a public purpose without the willing consent of relevant tenure right holders. The power to expropriate tenure rights is often necessary for social and economic development and the protection of the natural environment. For example, land may be needed for roads, railways, harbours and airports; for hospitals and schools; for electricity, water and sewage facilities; for redistributive reform, as provided by the Guidelines (section 15); and for the protection against flooding and the protection of water courses and environmentally fragile areas. The Guidelines provide extensive guidance on expropriation and compensation, including such issues as:

•public purpose requirements;

•fair valuation and prompt compensation;

•transparency and participation in expropriation processes;

•options for appeal and judicial review; and

•compliance with human rights law.

Examples of Guidelines’ provisions relevant to lawmaking are provided in Box 3.15.

Clear, well-drafted expropriation legislation has the potential to reduce conflict related to compulsory acquisition proceedings, and to ensure that affected stakeholders are left in a good or better position than they were in before the expropriation. Lawmakers can help to enact the Guidelines’ suggestions by drafting legislation that does the following (see FAO, 2009a):

•It clearly defines the public purposes for which the government may acquire tenure rights on a compulsory basis.

•It sets out transparent, fair procedures for acquiring tenure rights and for providing equitable compensation.

•It establishes mechanisms to ensure that livelihoods are restored or enhanced, which may well involve going beyond payment of compensation, as expropriation may have impacts beyond the lost value of the asset taken.

•It establishes measures to guarantee that affected stakeholders are given voice throughout the process, including during the planning phase. Stakeholder participation will help the acquiring agency to consider fully the cultural, social and environmental concerns of local communities, and to identify measures to prevent or mitigate negative aspects of the project.

•It mandates that advance notice of an anticipated project is given to all potentially impacted persons. To ensure that all affected people are aware of the project, notice should be publicized as widely as possible. Information should be disseminated through popular publications, and radio and television programs. The information should be comprehensible: a legal notice does not mean genuine notice if people cannot understand what is being said. The information should be presented in local languages, and in both written and oral form in areas with high rates of illiteracy.

•It makes public hearings mandatory at which affected stakeholders may challenge aspects of the planned project and demand downward accountability from planners and government officials. Public hearings should be held at times and places that are convenient for both men and women, and should be held in the local language.

•It requires that compensation is granted for both registered and unregistered legitimate tenure rights. Communities with legitimate rights based on custom or indigenous tenure systems should be compensated not only for the land and improvements to the land, but also for the replacement costs of all resources gathered from the land that they rely on for their daily survival.

•It provides all stakeholders the right to appeal expropriation decisions. Legislation should ensure that the appeals procedures are comprehensible and simple, with prompt, unrestricted rights to appeal to an independent body, including for the delay of payment without good cause. Legislation should mandate that the court or reviewing body adjudicate matters in a public and transparent manner, and that procedures be conducted at low or no cost to indigent claimants.

International standards provide guidance on the wide range of assets that should be compensated as part of expropriation processes, including assets held under customary tenure systems (see Box 3.16).

National legislation adopted in some countries also provides pointers on how lawmakers might regulate expropriation processes (Box 3.17).

4

Making law work in practice

4. Making law work in practice

This chapter provides guidance on approaches to ensure that national laws promoting the Guidelines are implemented successfully. It outlines the various actions and tactics that legal professionals can take to support responsible governance of tenure. While recognizing the wide range of positions that legal professionals can hold in the governance of tenure, the chapter focuses on the role of legal professionals working for or with government, public-interest legal service organizations and business lawyers. The role of judges is discussed in Chapter 5, which deals with dispute settlement.

In recent years, several states have adopted legislation that significantly strengthens the tenure rights of vulnerable and marginalized groups, including by formalizing customary and indigenous tenure rights and governance systems. Yet, in many instances implementation of these laws has been limited. This is partly due to constrained resources and capacity. Also, some states have focused more on attracting commercial investment than on protecting the tenure rights of the poor and vulnerable.

To ensure that laws promoting responsible governance of tenure are duly implemented, the institutional, political and social factors that contribute to weak tenure security and poor governance need to be addressed. Such positive change requires fair, well-functioning and impartial administrative and justice systems, and citizens able to use these systems to protect their tenure rights.

In addition, lawyers advising business can play an important role by integrating Guidelines’ standards in their institutional policies and processes, and by demanding that states adhere to those standards in the governance of investment processes. In so doing, the business community can not only reduce the tenure risk associated with resource-based investments, but can also contribute to strengthening tenure security more broadly.

The following sections detail how legal professionals working for or with states, public-interest legal service organizations and business lawyers can work to promote responsible governance of land, fisheries and forests. The successful implementation of national laws that promote good tenure governance will only be accomplished by the interconnected efforts of all of these groups; positive action by one sector alone may prove to be ineffective.

4.1 The role of the state

Responsible governance of tenure is the primary responsibility of states. States are responsible for ensuring adherence with the Guidelines, and have a duty to ensure compliance with international law, including international human rights law, in the governance of tenure. This responsibility often involves the direct exercise of government powers; for instance, in the context of resource-use planning exercises, of the management of publicly-owned lands, fisheries and forests, and of expropriations of tenure rights. It also concerns the regulation and supervision of third-party activities, in order to protect legitimate tenure rights as well as human rights from infringement by individuals, businesses or groups.

Ensuring proper implementation of laws that promote responsible governance of tenure is a key part of fulfilling this responsibility. States – the central actors in lawmaking (see Chapter 3) – also play a particularly important role in implementation. In the best situations, officials dedicated to public service consistently work to strengthen governance by improving governance systems and institutions. However, governance of tenure systems can also be rife with bureaucratic obstacles and structural inequities, and even those in power often face significant constraints when seeking to introduce or change governance protocols.

Given these complexities, efforts to reorganize state institutions to improve governance of tenure of land, fisheries and forests need to be pursued simultaneously at every level of a state, and across multiple ministries, agencies and departments. These efforts may involve leveling power asymmetries, streamlining procedures to ensure use and accessibility by all citizens, harmonizing mandates and procedures, and addressing systemic bottlenecks. Success requires determination, commitment and political will at all levels, including the highest level of government. Depending on context, external pressure and engagement from citizen groups can support the emergence or consolidation of that political will.

State efforts to implement legislation for improving governance of tenure can involve a variety of actions, including:

•allocating adequate public resources to the implementation of laws;

•raising awareness both in the general public and among state officials about laws that promote responsible governance of tenure;

•considering the relevance of any extraterritorial dimensions and obligations;

•harmonizing legislation and streamlining legal and administrative procedures;

•establishing and rigorously pursuing anti-corruption mechanisms, such as criminal sanctions, complaints procedures and ombudsmen’s offices;

•paying special attention to the needs of poor and marginalized groups; and

•ensuring that the national judiciary and officials responsible for adjudicating tenure disputes properly apply national laws that promote responsible governance of tenure (see Chapter 5).

The following sections discuss some of these actions in detail. While state action to implement legislation may involve interventions in a wide range of areas, the focus of this guide is on the legal dimensions.

4.1.1 Allocating adequate resources to ensure implementation

The adoption of new legislation is the beginning, not the end, of a governance-enhancing process. For good laws to make a difference, they must be properly implemented. Implementation can have significant resource implications when, for example, laws establish new governing bodies, procedures and technologies necessary for the registration, management and protection of tenure claims. Rigorous financial analyses of the costs of implementing proposed legislation can facilitate informed design of “implementable” legislation. As discussed in Chapter 3, piloting new legislation can help tailor design of its implementation to local contexts, including by factoring in cost considerations.

Once laws are adopted, it is essential that adequate financial resources are allocated to support the implementation of the new law. This may encompass the processes to develop the necessary implementing instruments (e.g. government regulations, ministerial circulars, guidelines). It may also involve supporting the establishment and functioning of the administrative structures responsible for implementing the law.

Responsibility for resourcing implementation of laws lies first and foremost with the government and the public budget. Where relevant, development assistance can also provide support; in which case, it is essential to ensure effective coordination among the multiple initiatives to support or pilot the implementation of a new law.

4.1.2 Raising awareness about laws that promote responsible governance of tenure

For a law to be properly implemented, citizens and officials need to be aware of the law, its content and how to use it in practice. In this regard, the Guidelines call for states to ensure that people whose tenure rights are recognized or who are allocated new tenure rights have full knowledge of their rights and also their duties (see Box 4.1).

Making information available to citizens requires, at a minimum, publishing legislation, for instance, in official gazettes. But where adult literacy is limited and access to official documentation constrained, public authorities can take more proactive steps to ensure that information reaches poor and vulnerable groups. This may involve translating the law into the different languages spoken in the country; creating low-literacy explanations of the law in local languages; and running large-scale awareness-raising campaigns that use radio and television programmes, posters, billboards, comic strips, tee-shirts, community theatre, the internet and other communication materials accessible to a non-literate audience.

Similarly, public officials need to be aware of what laws and regulations govern the performance of their jobs, what rights citizens have, what special protections exist for certain vulnerable groups, and what responsibilities they have to ensure that citizens’ rights are protected. This requires providing government officials with rigorous and ongoing legal training designed to ensure awareness of laws and regulations and of the tenure challenges faced by holders of tenure rights, particularly women and marginalized groups. There are interesting experiences that show the advantages of bringing state and non-state actors together in joint capacity-building programmes (see Box 4.2).

Where non-state authorities perform public functions, such as when customary leaders play a role in the management of tenure rights, it is important that capacity-building efforts reach out to these authorities as well (see Box 4.3).

4.1.3 Streamlining legal and administrative procedures

Cumbersome tenure administration processes can make it more difficult for tenure right holders to exercise their rights. They can also constrain the implementation of tenure laws. For example, tenure registration procedures may require filling out multiple forms, seeking the signatures of multiple state officials from a variety of offices, paying fees and providing very specific written proof of one’s tenure claims, among other processes. As a result, tenure registration may progress haphazardly, take years to complete and allow opportunities for rent-seeking and mismanagement.

Other obstacles that may undermine access to recording of tenure claims include: the high costs of legal fees associated with each step of administrative processes; language barriers related to legal forms and processes only being available in the official state language; illiteracy challenges that render vulnerable and marginalized unable to fill out necessary forms and gather required documents; and inaccessible state offices located in urban centres far from where vulnerable or marginalized groups live. Addressing these issues requires action at multiple levels.

Laws and implementing regulations should establish straightforward and unambiguous procedures and clearly set out the rights and responsibilities of all key actors. They should also omit any unnecessary requirements and minimize administrative hurdles, establishing procedures that are streamlined, affordable and easily navigated by all tenure right holders, including poor and vulnerable people.

Where appropriate, states should decentralize powers and responsibilities to increase accessibility. Decentralized state administration can bring the legal system closer to the poor. This process may involve devolving powers to local government bodies or supporting co-management arrangements to promote implementation of national law (see Box 4.4).

If not done properly, however, decentralization can enable elite capture, provide opportunities for corruption and raise significant capacity challenges. A clear legal framework should establish distribution of responsibilities, funds and authority at the different levels of a state. Precautions should also be taken to ensure that decentralization does not increase local corruption and elite capture.

Responsible governance of tenure hinges on the ability of the public to access information about state action and policies. The Guidelines call for states to provide systems to record tenure rights in order to improve their security and to ensure that everyone is able to record their tenure rights and obtain information without discrimination on any basis (see Box 4.5 and note that an FAO technical guide on recording tenure rights and parcels is under preparation).

Laws should, therefore, state that, in principle, tenure administration records should be open to the public without any discrimination, subject only to privacy considerations. The public should also be permitted to access written copies of laws and regulations, review files, request information about how local tenure decisions were made, read transcripts of relevant hearings and official meetings, and otherwise examine state decision-making processes; again, subject only to the need to protect privacy.

States should be committed to supporting and providing assistance to poor and marginalized people to help them exercise their tenure rights. States can further help vulnerable groups successfully navigate formal legal systems by providing support services for the poor such as legal advice centres or training sessions for claimants at state offices. They can establish rules that all lawyers must volunteer a certain number of hours each year to pro bono legal services for poor and marginalized groups, and individuals, or provide financial support to NGOs that offer free legal services (see Box 4.6).

4.1.4 Instituting robust anti-corruption mechanisms

Corruption undermines the quality of the governance of tenure, and the registration and legal protection of legitimate tenure rights. Services that should be available to all as a matter of right may be treated as ‘favours’ in exchange for advantages of various kinds. This may occur at high levels of decision-making; for instance, in relation to large-scale allocations of tenure rights for commercial projects. But corruption may also be petty; for example, where underpaid low-level administrators demand bribes at every step of an administrative process (Transparency International and FAO, 2011). Corruption can severely undermine the proper implementation of laws that promote responsible governance of tenure.

The Guidelines pay a great deal of attention to combating corruption. Prevention of corruption features among the ‘general principles’ underpinning the Guidelines. The Guidelines also feature numerous provisions on preventing corruption (see Box 4.7).

To address corruption and rent-seeking, states may take the following steps, among other actions:

•ratifying and implementing international conventions to combat corruption, including the United Nations Convention Against Corruption;

•introducing asset declaration requirements for ministers and high-level officials;

•reforming procedures to eliminate unnecessary hurdles that create opportunities for corruption, and to promote transparency at all levels of decision-making;

•making land administration records accessible to the public, subject to privacy provisions;

•creating expedited complaints procedures, ombudsmen and appeals processes, to allow for immediate reporting of corruption;

•establishing effective criminal sanctions and enforcement mechanisms, and prosecuting corrupt officials.

FAO’s forthcoming technical guide on registration of tenure rights addresses how anti-corruption measures can be built into registration systems and operations.

4.1.5 Paying special attention to poor and marginalized groups

Responsible governance of land, fisheries and forests involves creating special supports for the tenure rights of poor and marginalized groups, or groups whose tenure claims are particularly vulnerable. Depending on context, this might include low-income people, women, youths, pastoralists or migrants.

Because some groups face harder constraints in their access to legal procedures, neutral laws may not be enough to address the needs of those groups and may, in fact, have unintended discriminatory effects. Legislation can establish safeguards and exceptions to allow vulnerable groups to overcome systemic hurdles. For example, secondary legislation concerning registration of tenure rights might include provisions stipulating that state officials help illiterate applicants complete forms, or that specific fees are waived when costs would prohibit the completion of an application.

Gender also requires particular attention (see Box 4.8). Laws could require, and registration forms could enable, both the male and female holders of tenure rights to be officially recorded; and where only one tenure holder is recorded, the form could include appropriate space for an explanation as to why that is so. Hiring more female staff members to land administration and management institutions, as well as creating teams of female officers to work exclusively with women seeking to register their tenure claims, can also make the tenure administration system more responsive to women’s concerns and aspirations.

States have a particularly prominent responsibility where poor and marginalized groups come into contact with more powerful actors; for example, where large-scale investors acquire tenure rights for commercial projects. In these contexts, public authorities should support communities during negotiations with investors, and throughout the process. Depending on context, this could involve:

•providing legal assistance for communities during negotiations with investors;

•ensuring that mechanisms are in place to hold investors accountable for delivering agreed-upon benefits to communities; and

•establishing effective sanctions, including termination of investor-state contracts, for investors who fail to fulfill their contractual obligations under community-investor agreements.

4.1.6 Considering the relevance of extraterritorial dimensions and obligations

States should take steps to improve the governance of tenure at home, but there is much that states can do in relation to tenure transactions occurring overseas. The Guidelines state that, where transnational corporations are involved, their home states have “roles to play” in assisting both those corporations and host states to ensure that businesses are not involved in abuse of human rights and legitimate tenure rights. Also, states should take additional steps to protect against abuses of human rights and legitimate tenure rights by business enterprises that are owned or controlled by the state, or that receive substantial support and service from state agencies (par. 3.2).

Home country measures aiming to encourage and regulate investment abroad may help to promote responsible agricultural investment in other countries that complies with the Guidelines. An FAO study on selected Organisation for Economic Co-operation and Development (OECD) countries shows that many developed countries have recently strengthened regulatory frameworks and created incentives to promote responsible business conduct. A number of these countries now require compliance with the Guidelines by companies that are owned, controlled or supported by the state (FAO, forthcoming). Box 4.9 highlights some of these measures.

There has been debate about the extent to which home states have a legal obligation to take action. Global and regional treaties create extraterritorial obligations in relation to combating corruption, and several countries have enacted legislation criminalizing corruption of foreign government officials. With regard to international human rights law, in 2011 legal experts from different parts of the world adopted the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights. The principles aim to restate existing international human rights law on extraterritorial obligations. In addition, the Committee on Economic, Social and Cultural Rights (CESCR), which is the body that monitors implementation of the International Covenant on Economic, Social and Cultural Rights, recently reminded a number of states of their extraterritorial obligations in relation to projects conducted abroad financed by a state pension fund (CESCR, 2013a) and the supervision of national companies operating abroad (CESCR, 2013b).

4.2 Role of public-interest legal service organizations

Implementing laws for responsible governance of tenure cannot hinge on state action alone. Citizens must be empowered to claim and defend their tenure rights and demand that state agencies improve administrative procedures and formal requirements. Citizens may have to demand change, apply consistent pressure, struggle to alter the political landscape and proactively pursue recognition of their tenure claims, implementation of laws that protect their rights and adherence to the Guidelines.

Public-interest legal service organizations play an important role in ensuring the responsible governance of lands, fisheries and forests. Lawyers, paralegals, law students, community organizers, policy advocates and other technical experts help support citizens to hold their government accountable to responsible governance, justice and the rule of law (see Boxes 4.10 and 4.11). Because of their understanding of how administrative systems function and their legitimacy as legal advocates, legal service providers can help disadvantaged and vulnerable individuals and communities access and navigate formal legal systems to successfully claim tenure rights.

Public-interest legal service organizations can also ensure that state agencies and actors follow pro-poor legal mandates by reminding them of pro-poor regulations, monitoring administration processes and acting as “watchdogs” to ensure that government officials comply with relevant laws. Their help is particularly necessary to support the tenure rights of vulnerable individuals and communities in situations characterized by power asymmetries and unequal bargaining power.

Public-interest legal service organizations provide a wide range of legal services, including:

•providing legal empowerment and legal literacy education, including through paralegals, junior lawyers, legal clinics, legal caravans or other approaches;

•making calls for reform to laws, and formulating appropriate changes, when problems arise or when the law fails to cover an area adequately;

•supporting mapping, documentation and registration of legitimate tenure rights, including the customary and indigenous tenure rights of individuals and communities;

•helping communities to draft, adopt and implement rules and natural resource management plans to ensure responsible governance of their lands, fisheries and forests;

•providing support to communities and families facing dispossession of their tenure rights, including discrimination based on gender, age, minority status and social class;

•mediating and resolving intercommunity tenure conflicts;

•providing legal and technical expertise during negotiations with governments and potential investors for the use of community lands, fisheries and forests;

•helping to establish legal personality for community groups;

•supporting communities and individuals during processes of expropriation for a public purpose or unlawful dispossession; and

•assisting communities in the enforcement of contracts made with investors for the provision of community benefits in conjunction with commercial operations.

Legal strategies should always be community-driven and carefully crafted to be appropriate to the local context or issue at stake.

4.2.1 Legal empowerment and legal literacy education

As explained above in Section 4.1, members of vulnerable groups may have only limited understanding of national and international laws that protect their tenure rights. In addition to government agencies’ efforts, public-interest legal service organizations have an important role to play in bringing legal literacy and legal empowerment to vulnerable and marginalized groups.

Efforts to increase legal literacy may start by raising awareness about the basic structure of government, the national constitution, the legal obligations of both citizens and government, and other applicable legal constructs. Awareness raising may also cover the law regulating land, fisheries and forests, as well as the other laws that may affect the governance of tenure (e.g. environmental law, inheritance law, family law). Legal education initiatives may also include training on a range of practical skills related to identifying and claiming tenure rights, including map-making and map reading, local data collection and sustainable resource management.

Such trainings are most effective when they present information in a manner that illustrates how laws are relevant to people’s day-to-day realities; and when they cover legal issues in light of real-life community concerns about tenure rights. Such efforts may also need to work to transform people’s perceptions of the legal system, persuading people – often in the face of overwhelming evidence to the contrary – that if their rights are abused, legal systems will provide protection.

Making people aware about the substantive content of their legal rights is usually not enough. To ensure responsible governance of tenure, tenure right holders must also understand how to follow legal and administrative procedures to successfully claim, protect and defend their rights. They need to know which agencies are in charge of processing tenure claims, where those agencies’ local offices are located, what forms to ask for and what documents to bring as proof of tenure claims.

In relation to these more practical skills, public-interest legal service organizations can advise people to:

•ask for or bring along a translator if they do not understand or speak the national language;

•fill out forms and provide all required documentation or ask for help getting this documentation;

•request receipts as proof of all fees paid and all documents provided;

•request copies of important documents for personal records;

•ask for the names of the officials providing assistance, should there be a future problem and accountability be necessary;

•ask for any assistance or fee waivers that have been included in the governing regulations;

•know when and how to seek legal assistance from accessible legal service providers who can help them to claim or protect their tenure rights when they confront obstacles; and

•obtain basic skills and information related to bringing a case to court, such as what they can present as appropriate evidence of their argument, who they can call as witnesses, the basic rules and etiquette of court and other information.

Imaginative approaches to deliver legal training and information are also needed, particularly where adult literacy rates are low. Role-plays, games, simulations, discussions of real-life problems and other interactive tools can all be used, and questions should be encouraged (see Box 4.12). New technologies can also provide opportunities for capacity building and awareness raising. Training should be inclusive and should specifically target women and marginalized groups. It should also take into account such groups’ time, security and resource constraints; if only the village elite can afford to leave their work to participate in training, capacity-building exercises may entrench existing power asymmetries. Creative use of media (e.g. leveraging radio, television and SMS texts) and community theatre can help overcome barriers, as can posting information in places where people frequently go (e.g. commercial centres, wells/boreholes, meeting houses, places of worship and schools).

4.2.2 Supporting claims of tenure rights infringements and discrimination based on gender, age, minority status and social class

“Communities” are not homogenous groups: they may host significant social differentiation along gender, age, income or status, for example. This differentiation should be considered in legal support strategies. Public-interest legal service organizations should pay particular attention to infringements of tenure rights and discrimination based on gender, age, minority status or social class.

Let us consider the case of gender, for example. Even when women’s tenure rights are enshrined in law, women face multiple barriers to claiming and protecting their rights. Women may have little decision-making power in their homes and be unable to contest violations of their rights within the family or within customary institutions. They may also lack the economic independence and resources necessary to pursue legal action outside of their villages.

In addition, a woman may be threatened or endangered for seeking to enforce her rights. Should she be able to arrive at a government office to try to claim or defend her tenure rights, she might face discrimination and insensitivity to her situation by government administrators. Legal advocates can play an important role in helping vulnerable women, children and marginalized groups to exercise their tenure rights.

For example, advocates could establish systems to increase women’s and marginalized groups’ access to legal services. Community members may be trained as paralegals to provide basic legal support for women seeking to enforce their rights. Selecting women paralegals can help women feel at ease with using the services of paralegals.

It is also important that local leaders and the wider “community” are trained in upholding the tenure rights of marginalized groups. For example, legal literacy training may elaborate on gender issues, particularly, in relation to tenure rights. Interventions may also involve supporting communities to draft and adopt community by-laws to protect women’s tenure rights, based on participatory discussions.

They may also involve working with customary leaders to mediate family tenure disputes in a gender-equitable manner (see Box 4.13).

4.2.3 Supporting documentation and registration of legitimate tenure rights

Public-interest legal service organizations can play an important role in supporting the expedient implementation of clear, simple and easy-to-follow legal processes for the documentation of legitimate tenure rights, including customary and indigenous rights. (Note that an FAO technical guide on recording tenure rights and parcels is under preparation). This role can involve provision of legal assistance to navigate formal procedures for recording tenure rights, and complementary support (e.g. to establish a community as a legal entity, with which tenure rights might then be recorded).

These interventions may include supporting individuals and families to seek documentation of their tenure rights. In urban and peri-urban areas, individual and family tenure registration efforts have proved effective at significantly strengthening tenure security and promoting a range of positive secondary impacts. Individual and family land registration may be a useful strategy in situations where tenure rights have been recently clarified; for example, in cases where customary tenure systems have collapsed, where tenure disputes are widespread, in newly settled areas, and in areas where competition for land and other natural resources is particularly fierce.

Particular care should be taken with regard to the registration of customary tenure rights. Customary tenure generally comprises a complex mesh of overlapping rights that can be held by individuals, families, clans, entire communities, or can be reserved for future generations and changing community needs. For example, some areas may be identified for use by specific individuals or families for residence or crop cultivation, through a form of usufruct rights. However, even in these areas there can be collective and secondary rights to use certain resources such as water points, or to provide for rights of way or the migratory routes of pastoralists and hunter-gatherers. In addition, the use of agricultural parcels by individuals may change over time.

The registration of customary tenure rights is a relatively recent phenomenon and follows the provision of legal recognition to customary tenure rights by an increasing number of countries. Several countries have passed legislation that facilitates registering community tenure rights. In some cases, legislation may require communities to establish themselves as either a private legal entity capable of holding collective tenure rights, or a corporate body that holds resource rights in trust for the members of their community and which can transact with outsiders.

Registering a community’s tenure rights in the name of the community (such as a legal entity or corporate body) can help to provide legal protection against unauthorized encroachments or interferences. Neighbouring communities will need to agree on the positions of their common boundaries.

The registration of customary rights within the land of a community can be complex given the nature of customary tenure. Several countries have passed legislation that enables communities to map, document and register their resources and then administer and manage them according to customary or indigenous rules. The rights can be registered within a registration system operated by the community. Alternatively, some countries provide for usufruct and similar rights to be registered in formal registration systems operated by the states. In such cases, the law should be explicit that any subsidiary customary tenure rights to those usufruct areas are not extinguished when the individual usufruct rights are registered.

Care should be taken to distinguish between proposals to register existing tenure rights from proposals to convert one form of tenure right to another. The act of registration is to provide public notice of a person’s tenure rights, as well as protection of those rights, but registration of rights does not change the nature of those rights. Proposals to issue titles that are not designed to take into account pre-existing communal and secondary tenure rights should be treated with caution. Any interventions that change the underlying tenure rights should be addressed through an appropriate policy forum.

In some cases, these laws recognizing customary and common rights and providing for their registration are not being fully or well implemented. Reasons for this failure of implementation include: poor community awareness regarding their tenure rights; insufficient government capacity; overly complex and bureaucratic processes; opposition by government and elites; the prohibitive costs of titling and registration processes; the high level of technical expertise and resources involved in surveying, titling and registration; and inter- and intracommunity tenure disputes that arise during the process of determining community boundaries.

Advocates, thus, have a critical role to play in ensuring that communities’ legitimate tenure rights are documented and registered as allowed under national law. Even when national laws do not allow for community tenure documentation, trust law (where applicable) or corporate law constructs may be leveraged to create community legal entities that have the power to hold rights collectively, to sue and be sued, and to transact with outsiders. Further information about the commons can be found in a forthcoming FAO technical guide on the subject.

4.2.4 Supporting communities in negotiations with companies

Commercial investments can present both risks and opportunities for community development and prosperity. Yet even when communities welcome private investment, they may not be properly consulted about the planned endeavour, adequately compensated for their losses or given a meaningful say in how their resources will be managed once the investment is launched. Investments may be undertaken in ways that lead to environmental degradation, human rights violations, loss of access to livelihoods and inequity.

As described in Chapter 3, some laws provide that when outside investors seek tenure rights to land, fisheries or forests located within a community, the investors must ask for and receive the community’s FPIC, and negotiate benefit-sharing arrangements with the community. However, due to information and power asymmetries, communities may have little idea of the market value of their resources or the financial returns that can be derived from those resources.

Local leaders – customary or state – may be co-opted by investors or government agents and may negotiate personal side-payments or monthly allowances, rather than community benefits. Communities may not fully understand the proceedings, may feel intimidated or forced into signing agreements and may not be given a copy of the negotiated agreement that they have signed, leaving them without written proof of the contractual arrangement to which they ‘agreed’.

To address such power and information asymmetries, public-interest legal service organizations can support communities before, during and after negotiations with investors seeking to lease or purchase community lands. Before negotiations, public-interest lawyers and other legal service providers can inform community members about their legal rights to FPIC, as may be applicable, and about requirements for environmental and social impact assessments as well as international instruments that protect legitimate tenure rights, including the Guidelines.

Public-interest legal service organizations can also help community members develop a shared position on whether to accept or reject the investment, or about the terms they want. They can help the community research whether the investor is operating legally in the country, has met all legal and government requirements, and has the capacity and financial resources to carry out the proposed development.

During negotiations, public-interest legal service organizations can support communities to negotiate over the extent of shared benefits, profits, premiums or rental payments. They can also help communities scrutinize and influence environmental and social impact assessments and other processes related to the design of the investment. This may include making submissions into any public hearings, scrutinizing drafts and seeking judicial review of environmental permits.

After a negotiation is complete and an agreement is reached, legal service providers can ensure that the agreement is written down in the form of a contract that can be enforced or voided according to national contract law. The contracts should include enforcement mechanisms and penalties; for example, for failure to pay rental fees or to provide agreed benefits. Public-interest legal service organizations can help to ensure that these agreements are recorded and registered in relevant government offices and that copies are given to community leaders.

Legal service providers can also help to set up trusts (where applicable) and bank accounts to enable communities to manage rental payments. They can also help establish oversight mechanisms designed to ensure that investors and communities alike are complying with and fulfilling the terms of the negotiated agreement. If an investor is not complying with the terms of the contract, advocates can help communities demand that established penalties are enforced (see Box 4.14).

4.2.5 Support for individuals and communities facing expropriation of legitimate tenure rights

When governments take on large development projects, the tenure rights of thousands of families may be forcibly expropriated. The Guidelines contain extensive provisions on the implementation of expropriations (see Box 4.15). In addition to the information contained in the Guidelines, international human rights jurisprudence has clarified the implications of international human rights treaties for expropriation processes. Particularly important documents are the CESCR’s General comment No. 7: on forced evictions (1997) and the Basic principles and guidelines on development-based evictions and displacement (OHCHR, n.d.; see also FAO, 2009a).

As discussed in Chapter 3, lawmakers can contribute to responsible governance of tenure through properly crafted legislation. There is much that can be done at the implementation stage, as well. Public-interest legal service organizations have an important role to play in these situations. For example, they can:

•inform community members about: their rights during an expropriation process; how to contest unfair procedures; and how to dispute compensation determinations;

•organize public meetings where community members can exchange information, voice their concerns, share their experiences and identify potential strategies;

•assist community members to contest the purpose of the expropriation;

•work with community members to identify viable, cost-effective alternatives to the project that avoid or minimize disruption to the community and environment;

•support community members to conduct surveys on community interests, undertake impact assessments of the planned project and assist in relevant data collection;

•help to develop effective communication procedures between the acquiring agency and affected owners and occupants;

•implement mechanisms to redress affected families’ grievances and resolve conflicts;

•advocate for transparency and due process during expropriation procedures;

•assist people to advocate effectively for themselves, or act as their advocates, in the appeals process or other dispute-resolution procedures;

•assist vulnerable people, including women, to make effective compensation claims;

•assist people to develop alternative options for compensation, relocation and the restoration of their livelihoods;

•ensure that compensation is paid, and that resettlement efforts provide adequate alternative housing, and access to water, infrastructure and productive land, fisheries and forests; and

•strengthen negotiation skills to argue for equitable compensation or request higher compensation standards on community members’ behalf, among other supports.

Public-interest legal service organizations may also play a watchdog role, monitoring the acquiring agency’s actions to ensure that it is following the legally prescribed expropriation processes in a transparent and equitable manner. If conciliatory methods are unsuccessful, it may be necessary to organize public meetings, media engagement or other advocacy strategies to challenge abusive or corrupt behaviour and demand that the state comply with its legal obligations and enforce laws protecting legitimate tenure rights.

4.3 The role of business lawyers

As mentioned in Chapter 1, lawyers representing business – whether foreign or domestic investors, in law firms or as in-house counsels – can play an important role in ensuring that the standards identified in the Guidelines are upheld. Most of the provisions of the Guidelines are addressed to states, but some provisions are explicitly addressed to businesses (see Box 4.16). How, then, should lawyers representing businesses advise their clients on issues covered by these provisions?

Many of the standards in the Guidelines will be consistent with national law in the relevant jurisdiction. In these cases, providing sound legal advice based on applicable national law will contribute towards promoting implementation of the Guidelines. In other cases, however, national law falls short of the standards in the Guidelines, and determining how to advise clients can raise more difficult issues.

The spread of economic globalization has made it increasingly common for investors to operate in countries where laws or regulations are not fully developed in important areas of environmental and social concern, including many matters dealt with in the Guidelines. Business lawyers may be advised to counsel their clients that it is both prudent and ethical to undertake actions that exceed their minimum legal obligations.

Research highlights the major risks (financial, operational, reputational) that may be at stake if tenure issues are not duly considered, even where national law is formally complied with (The Munden Project, 2013). Even when tenure transactions comply with national law, disputes may arise if the local population does not consider these transactions to be legitimate. A wave of large-scale land transactions for plantation agriculture has seen extensive contestation, and has been negatively characterized as “land grabbing”, even in connection with deals that were broadly in line with national law. Business lawyers that restrict their advice to legal compliance and neglect the Guidelines may leave their clients exposed to disputes and to damage to finances, operations and reputations.

For these reasons, some companies have made public commitments to adhering to the Guidelines in their operations, or across their supply chains (FAO, 2014a), and lawyers advising them should be aware of the importance of their responsibility to encourage that commitment. They should also make clients aware that civil society advocates are likely to closely monitor the actions of such companies in light of the Guidelines, and that these advocates can mobilize public opinion where the safeguards in the Guidelines are not being applied.

In addition to corporate choices, there are also other reasons why business lawyers should take the Guidelines seriously. As discussed in Chapter 2, while the Guidelines are not binding per se, some of their provisions are in line with the professional responsibilities and duties commonly held by lawyers, and with international legal norms, for example in relation to human rights law. In addition, many provisions in the Guidelines are in line with other soft-law guidance and standards affecting business, so even where national laws may not be fully consistent with the Guidelines, a range of other international standards reinforce the principles of responsible governance enshrined in the Guidelines.

An important example is the UN Guiding Principles on Business and Human Rights, which were mentioned in Chapter 2. The Guiding Principles enjoy significant private sector support, and have contributed to the growing acceptance in the legal profession that soft-law standards can be an important part of advising companies. For example, bar associations and law firms have been developing guidance for attorneys on business and human rights and corporate social responsibility issues, and practitioners have begun incorporating these considerations into their transactional practices (see Box 4.17).

The Guidelines have much in common with the Guiding Principles, and the Guidelines implicitly refer to the Guiding Principles (par. 3.2). However, there are also important differences, not least because the Guiding Principles focus on human rights, while the Guidelines address human rights, but focus on tenure rights (CFS, 2013).

According to the Guiding Principles, human rights due diligence is the process through which companies “identify, prevent, mitigate and account for how they address their adverse human rights impacts” (Principle 17). The process “should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed” (Principle 17). The human rights due diligence “[w]ill vary in complexity with the size of the business enterprise, the risk of severe human rights impacts, and the nature and context of its operations” (Principle 17). The commentary to the UN Guiding Principles clarifies that human rights due diligence can be included within broader enterprise risk-management systems, including impact-assessment processes.

A combined reading of the Guiding Principles and the Guidelines would call for factoring legitimate tenure rights issues into due diligence processes. The draft Guidance for business lawyers on the UN Guiding Principles on Business and Human Rights (see Box 4.17) provide specific guidance on how to conduct human rights due diligence. In addition, lawyers may rely on the Guidelines to advise clients on mitigating impact, avoiding risks or even terminating the relationship under certain circumstances.

Business lawyers can remind their clients that, if a misalignment exists between national law and the Guidelines, national law does not necessarily prohibit the business from applying more stringent standards. More difficult issues may arise where complying with national law would prevent the business from adhering to the Guidelines; for example, when there is a direct contradiction between national law and the Guidelines.

The draft Guidance for business lawyers on the UN Guiding Principles on Business and Human Rights (see Box 4.17 and IBA, 2014) discusses how to address these challenges in relation to human rights, calling for lawyers to provide critical advice to clients in order to explore appropriate responses without violating national law. Options may include: assessing whether national law is ambiguous; seeking clarification from the government or even challenging the law before national courts where this is allowed; and developing solutions, including parallel processes, that allow the company to honour human rights without violating national law. Comparable options may be explored in relation to issues affecting legitimate tenure rights.

In addition to international law and standards, business lawyers may also need to consider the relevance of any extraterritorial obligations. As discussed, the Guidelines state that home states have a role to play in ensuring that businesses are not involved in abuse of human rights and legitimate tenure rights (par. 3.2). Section 12 on investments in the Guidelines reinforces this point, stating that, when states invest or promote investments abroad, they should ensure that their conduct is consistent with the protection of legitimate tenure rights, the promotion of food security and their existing obligations under national and international law, and with due regard to voluntary commitments under applicable regional and international instruments (par. 12.15).

In line with this guidance, business lawyers may need to consider applicable provisions of national law in the company’s home state that may have a bearing on investments in other countries. Examples of such national law include legislation to curb corruption of foreign officials (e.g. the US Foreign Corrupt Practices Act). As discussed above, preventing corruption is a recurring theme in the Guidelines. All OECD and seven non-OECD countries have ratified the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and many of them have already operationalized the convention. In addition, many home states now require adherence to good practice standards if investors should request state support, for instance, in the form of investment insurances or export credit.

A number of actors have issued further guidance to businesses specifically on land tenure issues and agribusiness investments. A forthcoming FAO technical guide is aimed at the private sector and centres on investment issues. The Interlaken Group (a multistakeholder forum) and the Rights and Resources Initiative (RRI) has prepared further guidance for companies on respecting land and forest rights (The Interlaken Group and RRI, 2015). The French Technical Committee on Land Tenure and Development published the Guide to due diligence of agribusiness projects that affect land and property rights (Comité Technique “Foncier et développement”, 2014b) which is explicitly based on the Guidelines. It includes a detailed grid identifying “criteria” and “key questions” for assessing the social, economic and environmental tenure issues associated with the design of proposed investment projects. The criteria and key questions pay significant attention to legal and contractual issues. While the guide is not designed primarily for lawyers, it can be of assistance to them when undertaking tenure due diligence for proposed investment projects.

The Guide to due diligence of agribusiness projects that affect land and property rights covers some issues that have received limited attention in international standard-setting efforts. For example, it discusses dealing with historical issues concerning the acquisition of the land (“passifs fonciers” or “tenure liabilities”). These issues may be at stake, for example, where the investor acquires a landholding company that, in turn, acquired the land in circumstances that formed the object of contestation; or, where the investor acquires the land from the state, which, in turn, expropriated it in circumstances that formed the object of contestation. While the transaction directly associated with the investor may be relatively uncontroversial, the taking over of previous “tenure liabilities” may expose the investor to tenure and reputational risks, particularly if contestation is still ongoing or latent. Lawyers should consider these risks in due diligence processes (Comité Technique “Foncier et développement”, 2014b).

Another practical issue that may arise in advising clients on tenure transactions concerns situations where the company negotiates directly with community groups. There may be significant power imbalances compounded by unequal access to legal representation if communities do not have the resources to hire lawyers.

Businesses taking a long-term perspective may wish to help communities obtain legal representation, knowing that a better-negotiated deal is ultimately more advantageous for both parties. This approach could include financial support to pay for the communities’ legal fees and expenses. While this solution may provide communities with legal representation, it also raises questions about conflicts of interest, because the party with whom the community is negotiating would pay the lawyers representing the communities. Technical solutions can help mitigate risks if, for instance, legal costs are paid through a trust or foundation rather than by the company directly.

Ultimately, however, this situation compounds the need for this type of legal assistance to be eligible for legal aid, and for legal aid to be properly resourced and accessible. It also points to the role that civil society advocates and development agencies can play to make sure communities are in a position to make informed choices and negotiate effectively.

5

Resolution of tenure disputes

5. Resolution of tenure disputes

While much of the discussion in previous chapters deals with the advantages of implementing the Guidelines as a means to avoid conflicts, the reality is that disagreements are an inevitable fact of life. To respond to this potential, this chapter discusses how to use the Guidelines in the context of the resolution of disputes. It begins with a discussion as to what tenure disputes are and why they matter to lawyers and other legal service providers. It then examines access to justice for perceived violations of tenure rights, guidance drawn from the Guidelines on dispute-settlement processes, and opportunities for judges and decision-makers to consider the Guidelines in the performance of their duties.

5.1 The resolution of tenure disputes – key concepts

5.1.1 What are tenure disputes?

Competition over land, fisheries and forests can result in disputes over tenure rights to these resources. Disputes can take place within or between families, or between individuals or communities and private companies. They can involve claims against the state. Disputes can arise over a number of issues, such as inheritance, boundaries or transactions (see Box 5.1). Tenure disputes matter because, if left unaddressed, they can escalate into violent conflict. Furthermore, providing effective and legitimate ways to settle disputes is an important factor in protecting legitimate tenure rights, and is one of the key functions of the law (FAO, 2014c).

The Guidelines draw a distinction between “disputes” and “conflicts” (treated in Guidelines sections 21 and 25, respectively). Broadly speaking, the notion of “disputes” used in section 21 (see Box 5.4) is used to refer to competing tenure claims which are limited in nature and can be addressed under existing law. Disputes are discussed in Part 5 of the Guidelines on the administration of tenure alongside tenure records, valuation, taxation and spatial planning.

In contrast, the term “conflicts” in section 25 of the Guidelines is used in relation to societal or large-scale disruption that result in widespread changes to tenure arrangements. The Guidelines also consider those conditions of discrimination caused by laws or policies that can lead to conflict. The discussion of conflicts in section 25 is situated in Part 6 of the Guidelines concerning emergencies, natural disasters and climate change.

The types of tenure conflicts referred to in section 25 involve complex issues linked to public international law topics, including international humanitarian law, international refugee law and the protection of legitimate tenure rights in conflict situations. The emphasis of this guide on national law and policy as well as space constraints place those issues outside the scope of this guide. Instead, this chapter focuses particularly on the implications of the Guidelines for the resolution of tenure-related disputes under national law. Nevertheless, the need for states to remove discriminatory laws and policies discussed in section 25 is a matter that may be identified and addressed in relation to assessments of national law.

5.1.2 Sources of tenure disputes

Tenure disputes can have diverse sources. Lawyers and other legal service providers should pay particular attention to these sources and their specificities. Recurring sources of disputes include tenure insecurity, resource scarcity, “quality” of law (or rather the lack thereof), and historical injustice (FAO, 2014c).

The issue of tenure insecurity is discussed elsewhere in this guide (see Chapters 2 and 3, in particular). In short, insecurity of tenure results from tenure holders fearing they will not continue to be able to enjoy the resources upon which they claim tenure rights. Marginalized groups tend to be the most affected by insecurity of tenure.

Resource scarcity, which is linked to the issue of insecurity of tenure, can be another key driver for tenure disputes. The issue arises when the availability of natural resources is insufficient to meet demand. This scarcity may be due to factors such as demographic growth, rising consumption, commercial pressures or skewed consumption between users, and concentration of land.

The quality of lawmaking is discussed in Chapter 3. Unclear or ambiguous laws can lead to competing claims in relation to the same land or forest, for instance. Lack of clarity on the status of customary tenure rights is a common source of disputes.

Historical injustice can also generate disputes, especially in cases where forced resettlements and tenure dispossession produced impacts that are still being felt by the affected population long after these events.

5.1.3 Providing mechanisms for resolving tenure disputes and protecting legitimate tenure rights

As discussed, providing mechanisms for resolving tenure disputes and protecting legitimate tenure rights is a key function of the law. Lawyers and other legal service providers can play an essential role in resolving tenure disputes. In virtually all countries, national law will have established a formal court system allowing tenure disputes to be formally adjudicated. National law will also have set up rules to determine such matters as: how judges are to be appointed; which court will have jurisdiction to decide what issue(s) (for example, some countries have established specialized courts to deal with land disputes, including Colombia, Ghana, Kenya and Mexico); which law(s) apply; the formalities, if any, necessary to access those courts; the procedure for managing the disputes, including opportunities for appeal; and mechanisms to promote compliance with, and enforcement of, dispute-resolution decisions.

However, formal court systems are often not the only avenue to resolve tenure disputes. As discussed in Chapter 2, multiple tenure systems may coexist in the same territory, including statutory and customary systems. Alongside formal court systems there may be non-state/judicial systems for resolving tenure disputes, including customary systems and alternative dispute resolution (ADR) mechanisms. In fact, many disputes never reach the courts and are resolved in some other way instead, including through ADR mechanisms. Only a very small percentage of disputes that are filed in court go through to the full trial process, as the vast majority are settled out of court.

ADR encompasses a broad range of mechanisms to resolve disputes outside of the court systems, including negotiation, mediation (see Boxes 5.2 and 5.3), conciliation, early neutral evaluation and expert determination (FAO, 2014c). While diverse, ADR mechanisms share a number of characteristics. For instance, they rely upon consent of the parties. In addition, mediation and conciliation aim to find a solution to the dispute, rather than deciding which rights should prevail according to the applicable law.

This approach favours outcomes that are consensual and mutually beneficial for all parties involved (FAO, 2014c). Such outcomes are often more likely to satisfy and be respected by all parties involved compared to, for instance, a judgment rendered by a court which might be difficult to implement and might need to be enforced through a potentially lengthy and costly process. However, imbalances in negotiating power can also result in inequitable deals.

Arbitration is also often listed as a type of ADR. Arbitration consists of parties agreeing: i) to refer their disputes to a tribunal made of usually one or three neutral individuals; and ii) to comply with the tribunal’s decision. Unlike the other above-mentioned ADR mechanisms, arbitration is an “adversarial” process leading to a binding outcome for the parties.

Parties cannot be compelled by law to reach an agreement through ADR, but the law sometimes requires the parties to make efforts to attempt ADR processes before bringing a matter to the court system.

In many parts of the world, customary systems provide relatively quick and inexpensive mechanisms to settle disputes over land, fisheries and forests. There is great diversity in customary systems for resolving tenure disputes. Many systems emphasize ADR approaches such as negotiation, mediation and conciliation.

The coexistence of state and non-state dispute-resolution systems can lead to a practice sometimes called “forum shopping”, whereby a person seeking to resolve a dispute (a claimant) will choose the avenue which is most likely to result in a favourable decision for them. While, in principle, advantageous for the claimant, this practice could be unfair to a defendant, as in cases when the claimant, having initially lost, is allowed to bring the same claim again through another avenue.

It is important to emphasize that court systems are not necessarily superior to customary systems or ADR avenues; the latter can be considerably more accessible than the former, may enjoy considerable legitimacy and can provide an effective way of resolving tenure disputes (Ubink and McInerney, 2011). Many tenure disputes do not go through court proceedings because of geographic, language or cultural barriers, high costs and slow procedures; it may take several years to reach a final decision. However, where customary systems entrench inequalities based on gender or status, for example, the court system might provide a useful option with fewer biases and dominance issues along the lines of gender, age, social class or ethnicity (FAO, 2013a).

5.2 Dispute resolution in the Guidelines

The Guidelines recognize the value of ADR (par. 4.9), and they provide extensive guidance on dispute resolution (section 21, as well as several other provisions; see Box 5.4).

In many ways, tenure disputes are similar to all other disputes. They suffer from the same or similar challenges as non-tenure disputes. These challenges include, for instance, lack of rule of law in some national contexts (see Chapter 2), which can undermine fairness of the judicial system, can favour corruption and, ultimately, erode public trust in the court system and the perceived legitimacy of this system.

An issue linked to the lack of rule of law is the lack of independence of judges from political and economic interests, which will, again, affect the perceived legitimacy of court systems. Other challenges include insufficient funding for court systems, which can create backlogs and, therefore, considerable delays for decisions to be rendered. Difficulties may also arise in connection with the enforcement of judicial decisions, particularly in the face of obstruction from the losing party.

The Guidelines address these fundamental issues. They call on states to provide “effective and accessible means to everyone, through judicial authorities or other approaches, to resolve disputes over tenure rights”, as well as “affordable and prompt enforcement of outcomes” (par. 3A.1.4). They also call for judicial bodies to be “impartial and competent” and for remedies to be “effective” and “promptly enforced” (par. 4.9). The impartiality and independence of the justice system require appropriate measures on the recruitment, progression, salaries and tenure of judges, as well as measures to combat corruption.

But tenure disputes also present important specificities. For instance, producing evidence can be difficult when customary tenure rights are at stake, especially since such rights tend to be unrecorded. Tenure disputes are often associated with very unequal playing fields and imbalances of power; for instance, where tenure disputes pit women against male elders, or indigenous peoples against large investors. The Guidelines pay a great deal of attention to these dispute-resolution issues, recognizing the importance of such things as: access to justice, an impartial judiciary, alternative dispute-resolution mechanisms and prompt enforcement, for the recognition of legitimate tenure rights.

The Guidelines call for states to provide prompt, accessible services to citizens to protect their tenure rights and facilitate the enjoyment of those rights, and to resolve disputes (par. 6.3). To do this, the Guidelines provide guidance to states as to the steps they can take to both:

•improve the formal state justice system, including making it more accessible, especially for vulnerable groups and to ensure remedies are promptly enforced (par. 21.1, 21.6); and

•strengthen and develop alternative forms of dispute resolution, including customary dispute settlement systems (par. 21.3).

5.2.1 Improving access to courts

The Guidelines call for dispute-resolution services to be accessible to all in terms of location, and for states to take measures to support vulnerable or marginalized groups to access judicial services, including through affordable legal aid and the provision of mobile services for remote communities and mobile indigenous peoples (par. 6.6, 21.1, 21.6).

To do this, the justice system may need to be brought socially and geographically closer to the vulnerable or marginalized groups. Depending on context, dispute-resolution mechanisms may be devolved to the local level so that tenure disputes can be settled quickly. Courts may need to be decentralized, special legal bodies and/or mobile dispute-resolution services established at the local level. Judges may set up rotating tribunals or mobile courts, visiting remote areas periodically to hear disputes locally.

Justices of the peace or local small claims tribunals may be set up in rural areas or local leaders can be trained and certified to act as village representatives of national justice systems, with clear lines of oversight and appeal. Various countries, including Botswana and Brazil, have already established such systems (see Box 5.5).

To ensure that all citizens can use the courts, the ability of the parties to pay should be factored into the structure of court fees. Affordable aid may be provided and the very poor could be offered free legal representation (see Box 4.7 on the issue of free legal advice).

5.2.2 Eliminating unnecessary legal and procedural requirements and making court procedures less cumbersome

The Guidelines provide that states should eliminate unnecessary legal and procedural requirements and strive to overcome barriers related to tenure rights (par. 6.3). They recommend that dispute-resolution services be accessible to all in terms of language and procedures, among other things (par. 21.1).

To this end, and depending on the context, the rules of court proceedings may need to be relaxed to accommodate the needs and capacities of the rural poor and marginalized groups and individuals. For example, poor claimants may be allowed to represent themselves in their native language, particularly in disputes involving low monetary stakes, and representation by individuals other than qualified lawyers could be permitted. Courts could accept a wider range of evidence as legitimate such as oral evidence (see Box 5.6), including in relation to proof of tenure rights.

Whenever the law allows it, judges could make efforts to speak in plain language comprehensible to lay people and take care to make sure that the poor understand court proceedings. Courts may also provide court translators so that the poor can speak in their own language and can understand the proceedings.

Similarly, rules of standing may be relaxed in appropriate circumstances so that a wider range of claimants can file lawsuits, such as allowing organizations to represent individuals and accepting collective claims. Statutes of limitations need to be thought through in light of the time that it can take to file lawsuits, particularly for marginalized groups.

5.2.3 Selecting and training a diverse judiciary

The Guidelines call for states to ensure that judicial authorities have the human, physical, financial and other forms of capacity to implement policies and laws in a timely, effective and gender-sensitive manner. They recommend that staff at all organizational levels receive continuous training and be recruited with due regard to ensuring gender and social equality (par. 6.1). To ensure responsible governance that reflects the range of gender, racial, ethnic, social and religious diversity, states may make deliberate efforts to hire judges from a variety of backgrounds. Efforts could also be made to ensure that women and indigenous peoples are encouraged to seek judicial office, while legislation should prohibit discrimination in judicial selection processes.

Judges may also need to be trained to ensure the poor and marginalized groups and individuals are given the same opportunity to exercise their rights and to be heard as other litigants, including by conducting their courtrooms in a manner that is less intimidating or penalizing to a range of litigants. Such training may include: strengthening the capacity of judges to protect human rights and enforce the rights provided for in national law and international instruments such as the Guidelines; emphasizing the role of judges as protectors of rights and as impartial adjudicators; supporting judges to confront and address personal biases; and reviewing relevant national judicial codes of conduct that emphasize judicial integrity, impartiality, independence and accountability. FAO’s experience in Mozambique in the late 1990s and early 2000s suggests that many judges were still lacking in knowledge of the country’s 1997 Land Law, and did not fully grasp the new principles and implications of the law. Some had continued to refer to colonial era law and were not familiar with the constitutional principles of the country (personal communication from Christopher Tanner, former Chief Technical Advisor of FAO’s legal education programme).

5.2.4 Strengthening customary justice systems by integrating them with statutory systems

The Guidelines recommend that states strengthen and develop alternative forms of dispute resolution, including customary justice systems (par. 21.3). As mentioned above, such systems often can settle local tenure disputes quickly and inexpensively. Collaborative relationships between formal and informal justice institutions can help both to improve access to and use of the courts and to reduce judicial caseloads.

Government-led training programmes to strengthen the capacity of customary leaders to understand national laws and human rights (including gender equity) are important steps in this direction. Judicial authorities could also provide ongoing support to customary leaders and supervise their decisions to ensure compatibility with the relevant constitutional and international human rights principles. In turn, customary leaders could support judges in areas such as customary rules, so that judges can understand the rationale behind local conceptions of justice and fairness (FAO, 2010).

5.2.5 Establishing a clear and accessible system of judicial appeal

The Guidelines call for states to provide a right to appeal (par. 21.1). Clear and simple appeal processes may be established as a check against judicial error and corruption, and as a way of ensuring consistency across judicial decisions. Clear and expedited appeals procedures would also allow the parties to contest what they feel are unjust court or customary decisions. It is important that at least the lowest tiers of appeal are easily accessible to poor and vulnerable groups. There is scope for innovation, including magistrates and judges travelling according to a set schedule throughout their areas of jurisdiction to bring the court system directly into villages.

5.2.6 Strengthening judicial oversight and accountability mechanisms

In line with their promotion of the rule of law (see Chapter 2), the Guidelines expect judicial authorities to be impartial. They also call for States to prevent corruption in dispute-resolution processes (par. 21.1 and 21.5).

The impartiality and independence of the justice system is the cornerstone of responsible governance; the courts are the last mechanism for holding other branches of government and other stakeholders accountable to enforcing tenure rights. Addressing the potential for judicial corruption is, thus, critical to protecting the tenure rights of the poor and vulnerable groups.

Ensuring commensurate salaries and maintaining high ethical standards with strict consequences could, in some cases, help to reduce bribery in the judicial system. Opening trials and hearings to the public, making court transcripts mandatory and publishing all judicial rulings can increase transparency, deter corruption, ensure greater consistency of decisions and create stronger judicial precedent.

Increased access to judicial decisions may also improve appeals processes: when a trial transcript exists and the judge’s reasoning is clearly written, a reviewing body can better address the disputed decision and identify if discrimination, errors of fact or law, corruption, subversion of justice or other issues impacted the original ruling. The media can expose instances of judicial corruption and highlight the need for judicial reform.

Depending on contexts, advocacy and sensitization programmes for the executive and legislative branches may be necessary to enhance their commitment to creating a competent, independent and impartial judiciary.

5.2.7 Enforcement of laws and court decisions

One of the Guidelines’ principles of implementation refers to the rule of law and recommends that laws be equally enforced (par. 3B.7). The Guidelines also indicate that states should provide effective remedies that should be promptly enforced (par. 4.9 and 21.1). The state may play an active role in enforcing court decisions, establishing effective enforcement procedures, punishing offenders and holding all parties accountable to respecting tenure rights.

5.3 Using dispute-resolution processes to promote implementation of the Guidelines

As discussed in Chapter 2, the Guidelines invite states to protect legitimate tenure rights (par. 4.5). To this end, they call for states, among other things, to provide access to justice to deal with infringements of legitimate tenure rights (par. 3.1.4). Where tenure disputes cannot be resolved through other dispute-resolution methods, court litigation can provide a powerful strategy to resolve disputes and ensure protection of legitimate tenure rights.

Litigation is the practice of bringing a legal dispute to a court to have the case heard by one or more judges. The threat of litigation can be an important component of legal empowerment initiatives. In instances of grave injustice, stalled dispute resolution, or when the opposing party does not take the issue seriously, both private entities and government officials are more likely to be responsive if there is a potential that the dispute will end up in court.

Lawyers and other legal service providers should strategically and carefully choose the cases they will bring to court as litigation is expensive and time consuming. It can take years and significant financial resources for a case to move through the courts to a final judgment.

Legal service providers may choose to litigate only those cases that have the potential to make a powerful impact. Litigation may not be a good strategy if there is no clear, or realistic, legal remedy, such as restitution or compensation, and no way to ensure that the ruling is promptly enforced and complied with. Public-interest legal service organizations can play an important role in monitoring the implementation of court judgments. As discussed, resolving the dispute out of court through options like mediation might help avoid enforcement issues.

There are many examples of litigation before national courts dealing with alleged infringements of legitimate tenure rights (see Box 5.7).

The Niger Delta case referred to in Box 5.7 is a good illustration of the extraterritorial context in which litigation dealing with alleged infringements of legitimate tenure rights can take place: despite the fact that the claim was made against a Nigerian company, the affected communities sued its parent company in the United Kingdom of Great Britain and Northern Ireland. Where transnational litigation of this type is not possible or appropriate, communities or their legal representatives might still be able to obtain key information from the parent company through the use of a “Section 1782” request in the American Federal Courts, for example. Section 1782 of Title 28 of the American Code is a federal law that enables a party to court proceedings initiated outside the United States of America to apply to the American court to obtain evidence for use in the non-American proceeding. This tool was used in a case before a Tanzanian court, involving a dispute between semi-nomadic communities and the Tanzanian subsidiary of an American company (EarthRights International, 2014).

Litigation can also occur before international bodies, such as regional or international human rights courts. Tenure rights and human rights are distinct but interrelated (OHCHR, 2014; Cotula, 2014b). A number of human rights have direct relevance to tenure rights, including the rights to food, housing, a healthy environment and property. The use of regional human rights courts, particularly in Africa, Latin America and Europe is growing (Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001; Saramaka People v. Suriname, 2007; Centre for Minority Rights Development (Kenya) and Minority Rights Group International v. Kenya; African Commission on Human and Peoples’ Rights v. The Republic of Kenya; Papastavrou and Others v. Greece, 2003).

In addition to formal litigation before regional human rights courts, the work of the UN treaty monitoring bodies and Special Rapporteurs can also provide channels to intervene where human rights violations occur in the context of governance of tenure (Special Rapporteur on the situation of human rights in Cambodia, 2012; Special Rapporteur on the situation of human rights in Myanmar, 2013; Special Rapporteur on the right to food, 2012).

Other methods of dispute resolution such as grievance mechanisms can also provide an effective avenue to resolve tenure disputes and ensure protection of legitimate tenure rights. As already mentioned in Chapter 4, the Guidelines call for business enterprises to establish non-judicial mechanisms to provide a remedy (par. 3.2). In addition to these company-led grievance mechanisms, international financial institutions such as the International Finance Corporation (IFC) and commodity-based multistakeholder certification bodies, such as the Roundtable on Sustainable Palm Oil (RSPO), also provide grievance mechanisms. In addition, the OECD has established National Contact Points (NCPs) to ensure the promotion and implementation of its Guidelines for Multinational Enterprises in countries that have adhered to them.

The use of grievance mechanisms is one among many (sometimes transnational) avenues that communities whose tenure rights have been affected can try to pursue, often with support from NGOs.

Whether parties can rely on international law in national courts depends on national law. In many jurisdictions, an international treaty would need to be incorporated into national law before parties can invoke that treaty before national courts. Even where parties cannot rely on the treaty as such, they may be able to argue that, where national law is ambiguous, it should be interpreted in ways that are consistent with international commitments.

As discussed in Chapter 2, the Guidelines are not a legally binding instrument and do not create any legal obligations. However, they have persuasive authority and they could, therefore, still be of use in dispute-resolution processes. Thus, in litigation before national or international courts, parties could refer to the Guidelines where, for instance, the terms of a national law are ambiguous, arguing that such terms should be interpreted in ways that are consistent with the Guidelines. The Guidelines can also provide interpretative guidance on how the rights to food, housing and property should be understood and protected.

Some judicial bodies have made explicit reference to international soft law. For example, the Supreme Court of Belize found that, because the UN Declaration on the Rights of Indigenous Peoples embodied general principles of international law, it needed to be given serious consideration in the case, Aurelio Cal et al. v. Attorney General of Belize. Where there is a significant confluence between the principles set forth in binding international law and those contained in a soft-law instrument such as the Guidelines, it is not unimaginable that judiciaries may draw on the Guidelines to identify or interpret the relevant law.

Tenure disputes can be exceptionally fierce, and the choice to defend one’s rights may come with the possibility of great personal risk. Upon initiation of a legal claim, clients and community members might be threatened with or be the victims of violence or harassment. Threats of retribution for taking legal action may come not only from powerful figures who have an interest in maintaining the status quo, but also from within an individual’s own family and community.

Public-interest legal service organizations should be sensitive to the fact that legal action may be a dangerous step for an individual or community to take. Legal service providers may need to help communities access the means necessary to protect their lives and interests throughout the course of the legal action and beyond. In this regard, the Guidelines specifically call for states to protect the civil and political rights of defenders of human rights, including the human rights of peasants, indigenous peoples, fishers, pastoralists and rural workers (par. 4.8).

6

Ways forward

6. Ways forward

The Guidelines represent an important development with considerable legal significance. Harnessing the law to implement the Guidelines can help improve tenure governance around the world and thus support the progressive realization of the right to an adequate standard of living, including adequate food and housing. FAO has played an important role in the development and dissemination of the Guidelines, including the production of this technical guide and other capacity development material. Yet implementing the Guidelines will ultimately depend on concerted efforts by a much wider range of actors. In fact, the ownership of the Guidelines is not with FAO but with the many organizations, countries and companies that participated in their preparation and have committed to promoting them. Lawyers can play an important role in this process. Using the law to implement the Guidelines calls for contributions involving a variety of actors, processes, tools and drivers.

Actors. The diversity and complexity of the issues addressed in the Guidelines call for action by a wide range of lawyers and other legal service providers – from legal professionals advising governments or parliaments to judges, business lawyers and public-interest legal service organizations. These diverse groups of lawyers tackle governance of tenure issues from different perspectives and in different contexts. But as highlighted throughout this guide, they can all make a real difference in terms of promoting the implementation of the Guidelines in their respective fields. Depending on professional roles and profiles, this role may involve advising or supporting governments, lawmakers, businesses, NGOs, federations of indigenous peoples and rural producers, communities and individuals to take action that advances responsible governance of tenure.

To sustain the interest of these diverse groups of lawyers over time, professionals in legal education can help by raising awareness among law students from the outset of their careers. Bar associations can contribute by disseminating information on the Guidelines through documentation centres, awareness raising, standard setting, training and other opportunities for continuing professional development.

Processes. These diverse groups of legal service providers need to apply the Guidelines in a variety of processes. Many such processes have been discussed throughout this guide. The processes include, for example, assessing and reforming national law, exercising rights through administrative procedures and through national and international courts, applying the Guidelines in the context of due diligence and corporate compliance exercises, and disseminating information through multiple communication and awareness-raising channels. As experience in using the Guidelines grows and as societal needs evolve, the range of processes in which the Guidelines can be usefully applied may also expand and evolve over time.

Tools. Legal service providers can facilitate the dissemination and use of the Guidelines in legal practice by drawing on a variety of tools. These tools may include training materials and practice guides, a wide range of communication and capacity-building tools, Web-based and other technological applications, legal assessment tools, model laws and contracts, and codes of conduct developed by bar associations or multistakeholder groups.

Drivers. Ultimately, uptake of the Guidelines in legal practice depends on the existence of effective drivers. These drivers will inevitably vary with the diverse professional roles and profiles of lawyers. Policy efforts to harmonize law and practice with the Guidelines is likely to be an important driver, as are greater awareness and sustained public support for implementing the Guidelines. Uptake by donors can encourage use of the Guidelines in legal practice; for example, as part of interventions to support law reform and implementation, or through requiring adherence to the Guidelines as a condition for any financial assistance to investment projects. The framing of applicable professional responsibility duties and opportunities to secure billable work to advise clients on the Guidelines are likely to be important drivers in promoting uptake by lawyers in commercial practice.

These multiple elements – actors, processes, tools and drivers – are dynamic, interdependent and mutually reinforcing. Their activation over time may lead to the emergence of a transnational community of practice, which embodies the collective practical experience gained through using the law to implement the Guidelines. Facilitating ongoing lesson sharing among legal practitioners can help promote uptake, disseminate the know-how generated in diverse settings, and create channels for communication and mutual support.

While not legally binding, the Guidelines build on international law and best practice. If legal service providers work together to put them into practice, they can uphold the rule of law, strengthen the protection of human rights, improve tenure governance and raise standards of legal practice. The centrality of legal aspects in the Guidelines means that lawyers can make a real difference. Promoting responsible governance of tenure is no easy task, but with the dedication of all legal service providers important progress can be made.

References

References

Cases

Legislation

International instruments

Legally-binding instruments

African Charter on Human and Peoples’ Rights (ACHPR), 1981.

Convention on Biological Diversity (CBD), May 1992.

Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), 18 December 1979.

International Covenant on Economic, Social and Cultural Rights (ICESCR), 16 December 1966.

International Covenant on Civil and Political Rights (ICCPR), 16 December 1966.

International Labour Organization (ILO) Convention No. 169 Concerning Indigenous and Tribal Peoples, 5 September 1991.

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (The Maputo Protocol), 2003.

Treaty of Waitangi, 6 February 1840.

United Nations Convention Against Corruption, 14 December 2005.

Voluntary Partnership Agreement (VPA) signed by Central African Republic and the European Union, 28 November 2011.

Voluntary Partnership Agreement (VPA) signed by Ghana and the European Union, 20 November 2009.

Voluntary Partnership Agreement (VPA) signed by Indonesia and the European Union, 30 September 2013.

Voluntary Partnership Agreement (VPA) signed by Liberia and the European Union, 11 July 2011.

Voluntary Partnership Agreement (VPA) signed by Cameroon and the European Union, 6 October 2010.

Non-legally-binding instruments

Code of Conduct for Responsible Fisheries (CCRF), October 1995.

Framework and Guidelines on Land in Africa: Land Policy in Africa: A Framework to Strengthen Land Rights, Enhance Productivity and Secure Livelihoods, September 2010.

Principles for Responsible Investment in Agriculture and Food Systems (CFS-RAI), October 2014.

Rome Declaration on Nutrition and its companion Framework for Action, November 2014.

UN Guiding Principles on Business and Human Rights, 2011.

Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (SSFG), June 2014.

Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT), May 2012.

Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security (RTFG), November 2004.

Literature

Aciro-Lakor, R.H. 2008. Land rights information centres in Uganda. In L. Cotula and P. Mathieu, eds. Legal empowerment in practice: using legal tools to secure land rights in Africa, pp. 71–76. London, IIED. (available at http://pubs.iied.org/pdfs/12552IIED.pdf).

African Union, African Development Bank & Economic Commission for Africa. 2010. Framework and Guidelines on Land Policy in Africa. Land policy in Africa: a framework to strengthen land rights, enhance productivity and secure livelihoods. Addis Ababa, Ethiopia.

Agarwal, B. 2009. Gender and forest conservation: the impact of women’s participation in community forest governance’. Ecological Economics, 68(11): 2785-2799.

Alden Wily, L. 2005. The commons and customary law in modern times: rethinking the orthodoxies. Paper presented at the UNDP–International Land Coalition Workshop, Land Rights for African Development: From Knowledge to Action, 31 October–3 November 2005. (available at https://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/321/Commons_CustomaryLaw.pdf?sequence=).

Alden Wily, L. 2012. Customary land tenure in the modern world rights to resources in crisis: reviewing the fate of customary tenure in Africa–Brief #1 of 5. Washington, DC, RRI. (available at http://www.rightsandresources.org/documents/files/doc_4699.pdf).

Assemblée parlementaire de la Francophonie (APF). 2012. Résolution sur la régulation du foncier dans une perspective de souveraineté alimentaire, Brussels 8–12 July 2012. Brussels, Assemblée Parlementaire de la Francophonie (APF) (available at http://apf.francophonie.org/IMG/pdf/2012_07_session_58_Resolution_Regulation_du_foncier.pdf).

Asian Development Bank. 1988. Summary of the handbook on resettlement: a guide to good practice. Manila (available at http://www.adb.org/documents/summary-handbook-resettlement-guide-good-practice).

Aust, A. 2007. Modern treaty law and practice, 2nd edition. Cambridge, Cambridge University Press.

Bollen, A., & Ozinga, S. 2013. Improving forest governance: a comparison of FLEGT VPAs and their impact. Fern (available at http://www.fern.org/improvingforestgovernance).

Brinkhurst, M. & Knight, R. 2014. Grassroots legal empowerment strategies for protecting rights to land, natural resources, and environment. Paper presented at the 3rd UNITAR-Yale Conference on Environmental Governance and Democracy, 5–7 September 2014, New Haven, USA. (available at http://conference.unitar.org/yale2014/sites/conference.unitar.org.yale2014/files/2014%20UNITAR-Yale%20Conference-Brinkhurst%20and%20Knight.pdf).

Bruce, J.W., Giovarelli, R., Rolfes Jr., L., Bledsoe, D. & Mitchell, R. 2006. Land law reform: achieving development policy objectives. Washington, DC: World Bank (available at https://openknowledge.worldbank.org/bitstream/handle/10986/7198/374480Land0law01PUBLIC1.pdf?sequence=1).

Budlender, D. & Alma, E. 2011. Women and land: securing rights for better lives. Ottawa, International Development Research Centre (IDRC). (available at https://idl-bnc.idrc.ca/dspace/bitstream/10625/47431/1/IDL-47431.pdf).

Byamugisha, F.F.K. 2013. Securing Africa’s Land for Shared Prosperity: A Program to Scale Up Reforms and Investments. Africa Development Forum series. Washington, DC: World Bank. (available at https://openknowledge.worldbank.org/bitstream/handle/10986/13837/780850PUB0EPI00LIC00pubdate05024013.pdf?sequence=1).

Committee on Economic, Social and Cultural Rights (CESCR). 1999. General Comment No. 7: The right to adequate housing (Art. 11.1): forced evictions. 20 May 1997, E/1998/22. (available at http://www.refworld.org/docid/47a70799d.html).

CESCR. 2013a. Concluding observations on the fifth periodic report of Norway, E/C.12/NOR/CO/5 (available at. http://www.refworld.org/docid/52d53eb34.html).

CESCR. 2013b. Concluding observations on the fourth periodic report of Austria. E/C.12/AUT/CO/4. (available at https://www.bka.gv.at/DocView.axd?CobId=54260).

Committee on World Food Security (CFS). 2012. Report of the 38th (Special) Session of the Committee on World Food Security (11 May 2012), CL 144/9 (C 2013/20) (available at http://www.fao.org/docrep/meeting/025/md958e.pdf).

CFS. 2013. Consultancy output 2: Comparative analysis of selected instruments on responsible investment: similarities, differences and gaps (available at http://www.fao.org/fileadmin/templates/cfs/Docs1314/rai/CFS_RAI_Comp_Anal_Sel_Instruments_EN.pdf).

CFS. 2014. Report of the 41st Session of the Committee on World Food Security (Rome, 13–18 October 2014) (http://www.fao.org/fileadmin/templates/cfs/Docs1314/CFS41/FinalReport/CFS41_Final_Report_EN.pdf).

Committee on Fisheries (COFI). 2014. Report of the 39th Session of the Committee on Fisheries (Rome, 19–13 June, 2014) Rome, FAO (available at http://www.fao.org/3/a-ML770e.pdf)

Colchester, M., MacKay, F., Griffiths, T. & Nelson, J. 2001. A survey of indigenous land tenure: a report for the land tenure service of the Food and Agriculture Organisation. Moreton-in-Marsh, Forest Peoples Programme. (available at http://www.rightsandresources.org/documents/files/doc_1177.pdf)

Comité technique “Foncier et développement”. 2010. Formulating a national policy to secure rural land tenure in Burkina Faso, by D. Thieba. Paris, AFD and Ministère des Affaires étrangères et européennes (MAEE) (available at http://www.foncier-developpement.fr/wp-content/uploads/Burkina-securisation-EN.pdf).

Comité technique “Foncier et développement”. 2014a. Avancées, limites et défis de la réforme foncière rurale du Burkina Faso, Note de synthèse no 5. Paris, AFD, Ministère des Affaires étrangères et du Développement international (MAEDI) (available at http://www.foncier-developpement.fr/publication/avancees-limites-defis-reforme-fonciere-rurale-du-burkina-faso/).

Comité technique “Foncier et développement”. 2014b. Guide to due diligence of agribusiness projects that affect land and property rights. Paris, AFD. (available at http://www.foncier-developpement.fr/publication/guide-to-due-diligence-of-agribusiness-projects-that-affect-land-and-property-rights/).

Cousins, B. 2007. More than socially embedded: the distinctive character of ‘communal tenure’ regimes in South Africa and its implications for land policy. Journal of Agrarian Change, 7(3): 281–315.

Cotula, L. ed, 2007. Changes in “customary” land tenure systems in Africa. London/Rome, IIED/FAO (available at http://pubs.iied.org/12537IIED.html).

Cotula, L. 2014a. Foreign investment, law and sustainable development: a handbook on agriculture and extractive industries. Natural Resource Issues No. 26., London, IIED (available at http://pubs.iied.org/17513IIED.html).

Cotula, L. 2014b. Addressing the human rights impacts of ‘land grabbing’. Brussels, European Parliament, Subcommittee on Human Rights (available at http://pubs.iied.org/12587IIED.html

Cotula, L. 2015. Land rights and investment treaties: exploring the interface. London, IIED Land Investment and Rights series.

Community Self Reliance Centre (CSRC., 2014. CSO land reform monitoring report, Nepal, by J. Basnet.

De Schutter, O., Ramasastry, A., Taylor, M.B. & Thompson, R.C. 2012. Human rights due diligence: the role of States. International Corporate Accountability Roundtable (ICAR) (available at http://issuu.com/_icar_/docs/human_rights_due_diligence__the_role_of_states?e=6698884/2680773).

Djiré, M. with Keita, A. & Diawara, A. 2012. Investissements agricoles et acquisitions foncières au Mali: tendances et études de cas. London/Bamako, IIED/GERSDA. (available at http://pubs.iied.org/pdfs/10037FIIED.pdf).

Dudwick, N., Fock, K. & Sedik, D. 2007. Land reform and farm restructuring in transition countries. The experience of Bulgaria, Moldova, Azerbaijan and Kazakhstan. Working Paper No. 104. Washington DC, World Bank.

EarthRights International. 2014. Factsheet: In re application of Loserian Minis. Supporting and protecting the land rights of the Tanzanian Maasai herders. (available at http://business-humanrights.org/sites/default/files/media/documents/factsheet-in-re-application-of-loserian-mines-eri.pdf).

European Union (EU) Forest Law Enforcement, Governance and Trade (FLEGT) Web site. 2014. Indonesia. (available at http://www.euflegt.efi.int/indonesia).

EU. 2011. FLEGT Voluntary Partnership Agreement between Indonesia and the European Union briefing note. Jakarta (available at http://www.euflegt.efi.int/documents/10180/23029/FLEGT+Voluntary+Partnership+Agreement+Between+the+Republic+of+Indonesia+and+the+European+Union+-+Briefing+Note+May+2011/cfcd6026-55a9-4b7f-a28d-f147d9e6c9d5).

Food and Agriculture Organization of the United Nations (FAO). n.d. About the Voluntary Guidelines on Tenure. Rome (available at http://www.fao.org/nr/tenure/voluntary-guidelines/en/).

FAO. 2004a. Report of the Council of FAO. Hundred and Twenty-seventh Session, Rome, 22–27 November 2004. Rome (available at ftp://ftp.fao.org/docrep/fao/meeting/009/j3893e.pdf).

FAO. 2004b. The Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security. Rome (available at ftp://ftp.fao.org/docrep/fao/009/y7937e/y7937e00.pdf).

FAO. 2005. Etude comparative de la mise en œuvre des Plans fonciers ruraux en Afrique de l’Ouest: Bénin. Burkina Faso, Côte d’Ivoire, by H.M.G. Ouédraogo. Rome (available at http://www.fao.org/fileadmin/user_upload/legal/docs/lpo42fr.pdf).

FAO. 2006a. Land tenure, food security and investment in postwar Sierra Leone by J.D. Unruh and H. Turray. Rome, FAO LSP Working Paper 22 (available at http://www.fao.org/3/a-ah243e.pdf).

FAO. 2006b. Making rights a reality: participation in practice and lessons learned in Mozambique by C. Tanner, S. Baleira, S. Norfolk, B. Cau and J. Assulai. Rome, FAO Livelihood Support Programme (LSP) Working Paper 27. Access to Natural Resources Sub-Programme. (available at ftp://ftp.fao.org/docrep/fao/009/ah248e/ah248e00.pdf).

FAO. 2007. Legislative drafting guide: a practitioner’s view. A resource for people working on international technical assistance projects by K. Rosenbaum. Rome, FAO Legal Papers Online #64 (available at http://www.fao.org/fileadmin/user_upload/legal/docs/lpo64.pdf).

FAO. 2009a. Compulsory acquisition of land and compensation, by S. Keith, P. McAuslan, R. Knight, J. Lindsay, P. Munro-Faure and D. Palmer. Rome, FAO Land Tenure Studies 10 (available at ftp://ftp.fao.org/docrep/fao/011/i0506e/i0506e00.pdf).

FAO. 2009b. Fisheries and aquaculture in the Lao PDR – a legislative review, by P. Cacaud and P. Latdavong. Bangkok, FAO Regional Office for Asia and the Pacific. RAP Publication 2009/05 (available at http://www.fao.org/3/a-aj481e.pdf).

FAO. 2009c. The Agriculture Policy Act (LOA) of Mali – Great potential for realizing the right to food through equitable access to land and natural resources, by M. Djiré. In L. Cotula, ed. The right to food and access to natural resources – using human rights arguments and mechanisms to improve resource access for the rural poor. Rome, FAO (available at http://www.fao.org/docrep/016/k8093e/k8093e.pdf).

FAO. 2009d. Towards improved land governance, by D. Palmer, S. Fricska and B. Wehrmann, Rome, FAO Land Tenure Working Paper 11. Rome (available at http://www.fao.org/3/a-ak999e.pdf).

FAO. 2010. Statutory recognition of customary land rights in Africa: an investigation into best practices for lawmaking and implementation, by R. Knight. Rome, FAO Legislative Study 105 (available at http://www.fao.org/docrep/013/i1945e/i1945e01.pdf).

FAO. 2011. Communal tenure and the governance of common property resources in Asia, by K. E. Andersen. Rome. Land Tenure Working Paper No. 20 (available at http://www.fao.org/docrep/014/am658e/am658e00.pdf).

FAO. 2012. Report of the Council of FAO. Hundred and forty-fourth session, Rome, 11-15 June 2012. Rome (available at http://www.fao.org/docrep/meeting/025/me323e.pdf).

FAO. 2013a. Governing land for women and men. A technical guide to support the achievement of responsible gender-equitable governance of land tenure, by E. Daley, C.M.Y Park, F. Romano, L Shamsaifar, T-H Lau and B. Wehrmann. Rome, Governance of Tenure. Technical guide no. 1 (available at http://www.fao.org/docrep/017/i3114e/i3114e.pdf).

FAO. 2013b. Implementing improved tenure governance in fisheries. A technical guide to support the implementation of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security. Preliminary version, September 2013. Rome (available at http://www.fao.org/docrep/018/i3420e/i3420e.pdf).

FAO. 2013c. Improving governance of forest tenure: a practical guide, by J. Mayers, E. Morrison, L. Rolington, K. Studd and S. Turrell. London/Rome, IIED and FAO (available at http://www.fao.org/docrep/018/i3249e/i3249e.pdf).

FAO. 2013d. Report of the conference of FAO. Thirty-eighth session, Rome, 15–22 June 2013. Rome (available at http://www.fao.org/docrep/meeting/028/mh093e.pdf).

FAO. 2013e. Respecting free, prior and informed consent. Practical guidance for governments, companies, NGOs, indigenous peoples and local communities in relation to land acquisition, by M. Colchester and S. Chao. Rome, Governance of Tenure. Technical guide no. 3 (available at http://www.fao.org/3/a-i3496e.pdf).

FAO. 2014a. Cola giants back Voluntary Guidelines on Land Tenure. Rome (available at http://www.fao.org/news/story/en/item/224619/icode/).

FAO. 2014b. Compte-rendu de l’atelier national de sensibilisation et développement des capacités sur les directives volontaires pour une gouvernance responsable des régimes fonciers applicable aux terres, aux pêches et aux forêts dans un contexte de sécurité alimentaire nationale. Niger. (available at http://hubrural.org/IMG/pdf/report_niger_workshop_final.pdf).

FAO. 2014c. E-learning. Addressing disputes and conflicts over the tenure of natural resources. Rome, (available at http://www.fao.org/nr/tenure/e-learning/en/).

FAO. 2014d. Report of the Council of FAO.. Hundred and fiftieth session. Rome, 1–5 December 2014. Rome (available at http://www.fao.org/3/a-mm477e.pdf).

FAO. 2014e. When the law is not enough. Paralegals and natural resources governance in Mozambique, by C. Tanner and M. Bicchieri. Rome, FAO Legislative Study 110 (available at http://www.fao.org/3/a-i3694e.pdf).

FAO. 2015a. Analytical assessment report for the implementation of the Voluntary Guidelines on Responsible Governance of Tenure in the land, fisheries and forestry sectors of Sierra Leone, by Floyd Alex Davies. FAO Legal Paper No 96. Rome.

FAO. 2015b. Implementation of the Voluntary Guidelines on Responsible Governance of Tenure and on sustainable small-scale fisheries in the fisheries and aquaculture legislation of Sierra Leone. Analytical assessment report, by I. Koroma. FAO Legal Paper No 94. Rome.

FAO. 2015c. Implementation of the Voluntary Guidelines on Responsible Governance of Tenure in the forestry legislation of Sierra Leone. Analytical assessment report, by Floyd Alex Davies. FAO Legal Paper No 95. Rome.

FAO. 2015d. Implementation of the Voluntary Guidelines on Responsible Governance of Tenure in the land legislation of Sierra Leone. Analytical assessment report, by M. Davies. FAO Legal Paper No 93. Rome.

FAO. 2015e. Safeguarding land tenure rights in the context of agricultural investment. A technical guide on safeguarding land tenure rights in line with the Voluntary Guidelines for the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, for government authorities involved in the promotion, approval and monitoring of agricultural investments, by A. Hilton, B. Wehrmann and E. Beall. Rome (available at http://www.fao.org/3/a-i4998e.pdf).

FAO. 2015f. Voluntary Guidelines for Security Sustainable Small-scale Fisheries in the Context of Food Security and Poverty Eradication. Rome (available at http://www.fao.org/3/a-i4356e.pdf).

FAO. 2016. Developing gender-equitable legal frameworks for land tenure. A legal assessment tool, by Kenney, N. and De La O Campos, A.P. FAO Legal Paper No 98. Rome.

FAO. (Forthcoming). Home country measures that promote responsible foreign agricultural investment: evidence from selected OECD countries, by Y. Fielder and J. Karlsson. Rome.

FAO & World Health Organization (WHO). 2014a. Framework for Action. Second International Conference on Nutrition. 19–21 November 2014. Report of the joint FAO/WHO Secretariat on the Conference. Rome (available at http://www.fao.org/3/a-mm215e.pdf).

FAO & WHO. 2014b. Rome Declaration on Nutrition. Second International Conference on Nutrition. 19–21 November 2014. Report of the joint FAO/WHO Secretariat on the Conference. Rome (available at http://www.fao.org/3/a-mm215e.pdf).

Fern. 2014. Forest Watch FLEGT update June 2014. (available at http://www.fern.org/sites/fern.org/files/VPA%20update%20June%202014.pdf).

Ferraz, L. S. 2010. Access to justice and mediation in small claims courts: empirical research and statistical analysis in nine Brazilian states. Fifth Annual Conference on Empirical Legal Studies Paper (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1636454).

FIAN International. n.d. Colombia – Las Pavas. (available at http://www.fian.org/what-we-do/case-work/colombia-las-pavas/).

Giovarelli, R. 2006. Customary law, household distribution of wealth, and women’s rights to land and property. Seattle Journal for Social Justice, 4: 801–825.

Goïta, M. & Coulibaly M. 2012. Listen, think and act: radio broadcasting to promote farmers’ participation in Mali’s land policy. London/Bamako, IIED/IRPAD (available at http://pubs.iied.org/pdfs/G03419.pdf).

Government of Nepal. 2013. Persistence and change: review of 30 years of community forestry in Nepal. Ministry of Forests, Soil and Conservation. Ekantakuna, Lalitpur. (available at http://www.msfp.org.np/uploads/publications/file/ebook_interactiv_20130517095926.pdf).

Government of New Zealand. 2008. Māori fisheries. The fisheries settlement. Ministry for Primary Industries (available at http://www.fish.govt.nz/en-nz/Publications/The+State+of+our+Fisheries+2008/Maori+Fisheries/default.htm).

GRET & RéDév. 2005. La loi d’orientation agricole du Mali. (available at http://hubrural.org/IMG/pdf/redev_note_contenu_loa_mali.pdf).

Group of Twenty (G20). 2012. G20 Leaders Declaration 19 June 2012. Washington (available at http://www.whitehouse.gov/the-press-office/2012/06/19/g20-leaders-declaration).

Guyer, J.I. ed. 1987. Feeding African cities: studies in regional history. Bloomington and Indianapolis, Indiana University Press.

International Bar Association (IBA). 2011. IBA international pinciples on conduct for the legal profession. (available at http://www.ibanet.org/Article/Detail.aspx?ArticleUid=bc99fd2c-d253-4bfe-a3b9-c13f196d9e60).

IBA. 2014. IBA publishes business and human rights guidance for bar associations and lawyers. London (available at http://www.ibanet.org/Article/Detail.aspx?ArticleUid=c9bd50c6-c2b3-455b-b086-a7efbfe1f6a5).

IBA. 2015. IBA Business and human rights guidance for bar associations. With commentaries. London. Available at (available at http://www.ibanet.org/Document/Default.aspx?DocumentUid=B9719C7C-212B-4717-8C66-FD028ABD6C6A)

Keita, A., Djiré, M. & Cotula, L. 2014. From legal caravans to revising the Mining Code: lessons from experience with legal empowerment in communities affected by mining, Mali. London, IIED (available at http://pubs.iied.org/G03762.html).

Kenney, N. & De La O Campos, A.P. 2014. Measuring gender-equitable land tenure: a Legislation Assessment Tool. Paper presented at the Annual World Bank Conference on Land and Poverty, Washington DC, March 24-27, 2014, “Integrating Land Governance into the Post-2015 Agenda: Harnessing Synergies for Implementation and Monitoring Impact.” Washington, DC, World Bank.

Knight, R., Adoko, J., Auma, T., Kaba, A., Salomao, A., Siakor, S. & Tanka, I. 2012. Protecting community lands and resources: evidence from Liberia, Mozambique and Uganda. Washington DC/Rome, International Development Law Organization (IDLO)/Namati (available at http://namati.org/resources/protecting-community-lands-and-resources-evidence-from-liberia-mozambique-and-uganda/).

Landesa, Tetra Tech ARD & United States Agency for International Development (USAID). 2013. Enhancing customary justice systems in the Mau Forest, Kenya. Impact evaluation report by F. Santos and M. McClung. Seattle/Burlington/Washington DC. (available at http://usaidlandtenure.net/sites/default/files/USAID_Land_Tenure_Keyna_Justice_Impact_Evaluation.pdf).

Law Society of England and Wales. 2014. Recommendations on business and human rights (available at http://communities.lawsociety.org.uk/human-rights/what-we-do/business-and-human-rights/recommendations/ and http://communities.lawsociety.org.uk/Uploads/i/v/c/BHRAGfinalRecommendations.pdf).

Lopez, D.L.J. & Demaisip, A.M.C. 2014. The Voluntary Guidelines on the Governance of Tenure of Land, Fisheries, and Forests (VGGT) and the proposed National Land Use and Management Act (NLUA). Philippines’ Input to World Committee on Food Security. Manila, GIZ and Asian NGO Coalition (ANGOC) (available at http://www.angoc.org/portal/the-voluntary-guidelines-on-the-governance-of-tenure-of-land-fisheries-and-forests-vggt-in-the-context-of-national-food-security-and-the-proposed--national-land-use-and-management-act-nlua-issue/).

Maru, V. 2006. Between law and society: paralegals and the provision of justice services in Sierra Leone and worldwide. Yale Journal of International Law, 31:427– 447.

Ministère de l’écologie, du développement durable et de l’énergie. n.d. Consultations Publiques. Paris, Government of France (available at http://www.consultations-publiques.developpement-durable.gouv.fr/spip.php?page=sommaire).

Ministry of Foreign Affairs for Liberia. 2009. An act establishing the Liberia Extractive Industries Transparency Initiative (LEITI). Monrovia, Government of Liberia (available at http://www.leiti.org.lr/uploads/2/1/5/6/21569928/act.pdf).

Nguiffo, S. & Djeukam, R. 2008. Using the law as a tool to secure the land rights of indigenous communities in Southern Cameroon. In L. Cotula and P. Mathieu, eds. Legal empowerment in practice: using legal tools to secure land rights in Africa. London, IIED (available at http://pubs.iied.org/pdfs/12552IIED.pdf).

Nguiffo, S. 2012. From law school to the field: Community lawyers in Cameroon. London, IIED, (available at http://pubs.iied.org/G03418.html)

Ntsebeza, L. & Hall, R. eds. 2007. The land question in South Africa: the challenge of transformation and redistribution. Cape Town, Human Sciences Research Council Press.

Office of the Attorney General – Samoa. 2008. Legislative drafting handbook. Legislative drafting requirements approved by the Attorney General for use in Samoa from 1 July 2008. Prepared by the Legislative Division of the Office of the Attorney General. Apia.

Office of the United Nations High Commissioner for Human Rights (OHCHR). n.d. Basic principles on development-based evictions and displacement. Annex 1 of the report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living A/HRC/4/18. New York and Geneva (available at http://www.ohchr.org/Documents/Issues/Housing/Guidelines_en.pdf).

OHCHR. 2011. Guiding principles on business and human rights: implementing the United Nations “Protect, Respect and Remedy” framework. New York and Geneva (available at http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf).

Open Society Justice Initiative. 2010. Community-based paralegals a practitioner’s guide. New York, Open Society Institute (available at http://namati.org/wp-content/uploads/2012/02/OSJI-Paralegal-Manual-US-11-05-2014.pdf).

Ortega, R. R. 2004. Models for recognizing indigenous land rights in Latin America. Washington, DC, World Bank (available at https://openknowledge.worldbank.org/handle/10986/18392).

Penal Reform International and Bluhm Legal Clinic of the Northwestern University School of Law. 2007. Access to justice in Africa and beyond: making the rule of law a reality. Evanston, Illinois (available at http://www.etc-graz.at/typo3/fileadmin/user_upload/ETC-Hauptseite/Menschenrechte_lernen/POOL/AcesstoJusticeAfirca.PDF).

Peterson, L.E. & Garland, R. 2010. Bilateral investment treaties and land reform in southern Africa. Montreal, Rights & Democracy (available at https://www.international-arbitration-attorney.com/wp-content/uploads/bilateral-investment-treaties-and-land-reform-in-southern-africaluke-eric-peterson-and-ross-garlan.pdf).

Quizon, A. &. Pagsanghan, J.I. 2014. Review of selected land laws and the governance of tenure in the Philippines: discussion paper in the context of the Voluntary Guidelines on the Governance of Tenure (VGGT). Manila, GIZ and ANGOC (available at http://www.angoc.org/portal/review-of-selected-land-laws-and-the-governance-of-tenure-in-the-philippines-discussion-paper-in-the-context-of-the-voluntary-guidelines-on-the-governance-of-tenure-vggt-published/).

Rebuta, C.C., Gregorio, R.A. & Hatta, Y.O. 2012. Barefoot lawyers: defending community resource rights in the Philippines. London, IIED.

Rio+20. 2012. The future we want. Outcome document of the Rio+20 Conference (available at http://www.uncsd2012.org/content/documents/727The%20Future%20We%20Want%2019%20June%201230pm.pdf).

Special Rapporteur on the right to food. 2012. Interim Report by Oliver De Schutter, The right to food. 8 August 2012, UN Doc A/67/268 (available at http://daccess-ddsny.un.org/doc/UNDOC/GEN/N12/456/40/PDF/N1245640.pdf?OpenElement).

Special Rapporteur on the situation of human rights in Cambodia. 2012. Report by Surya P. Subedi, A human rights analysis of economic and other land concessions in Cambodia. 24 September 2012, UN Doc A/HRC/21/63/Add.1 (available at http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session21/A-HRC-21-63-Add1_en.pdf).

Special Rapporteur on the situation of human rights in Myanmar. 2013. Report by Tomás Ojea Quintana, Situation of human rights in Myanmar. 23 September 2013, UN Doc A/68/397 (available at http://www.ohchr.org/Documents/Countries/MM/A-68-397_en.pdf).

Summers, N. 2012. Colombia’s Victims’ Law: transitional justice in a time of violent conflict? Harvard Human Rights Journal 25: 219–235.

Suresh, D. 2011. Land tenure and agrarian reforms in Nepal: a study report. Kathmandu, CSRC. (also available at http://csrcnepal.org/uploads/publication/_2dpV2BZ0IsM4luCcB_L2A00gEbYm-U.pdf).

The Interlaken Group and the Rights and Resources Initiative (RRI). 2015. Respecting land and forest rights: a guide for companies. Washington, DC (available at http://www.rightsandresources.org/wp-content/uploads/InterlakenGroupGuide_web_final.pdf).

The Munden Project. 2012. The financial risks of insecure land tenure: an investment view. (available at http://www.rightsandresources.org/documents/files/doc_5715.pdf).

The Munden Project. 2013. Global capital, local concessions: a data-driven examination of land tenure risk and industrial concessions in emerging market economies. Report for the Rights and Resources Institute by R. de Leon, T. Garcia, G. Kummel, L. Munden, S. Murday and L. Pradela. (available at http://www.rightsandresources.org/documents/files/doc_6301.pdf).

The Munden Project. 2014. Communities as counterparties: preliminary review of concessions and conflict in emerging and frontier market concessions. Report for The Rights and Resources Initiative by A. Alforte, J. Angan, K. Domondon, L. Munden, S. Murday and L. Pradela. The Munden Project. (available at http://www.rightsandresources.org/wp-content/uploads/Communities-as-Counterparties-FINAL_Oct-21.pdf).

Transparency International and FAO. 2011. Corruption in the land sector. TI Working Paper # 04/201, Berlin (available at http://issuu.com/transparencyinternational/docs/ti_fao_workingpaper4_2011_landandcorruption?e=2496456/3250973).

Tonchovska, T. & Egiashvili, D. 2014. Using existing land governance assessment tools for monitoring Voluntary Guidelines implementation at national level. Paper prepared for presentation at the 2014 World Bank Conference on Land and Poverty, March 24-27, 2014. Washington, DC, World Bank.

Ubink, J. & McInerney, T. eds. 2011. Customary justice: perspectives on legal empowerment. Leiden, IDLO.

United Nations General Assembly (UNGA). 2011. Principles for responsible contracts: integrating the management of human rights risks into State-investor contract negotiations: guidance for negotiators. Addendum to the Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie (available at http://www.ohchr.org/Documents/Issues/Business/A.HRC.17.31.Add.3.pdf).

UNGA. 2012. Agricultural development and food security. Report of the Second Committee, Rapporteur, A. Hodžić. United Nations General Assembly, Doc A/67/443 (available at http://www.un.org/ga/search/view_doc.asp?symbol=A/67/443&referer=/english/&Lang=E).

United Nations (UN) Global Compact. n.d. Lawyers as leaders: the essential role of legal counsel in the corporate sustainability agenda. (available at https://www.unglobalcompact.org/library/2571).

UN High Commissioner for Human Rights. 2014. Report of the United Nations High Commissioner for Human Rights, E/2014/86. United Nations Economic and Social Council (available at http://www.un.org/ga/search/view_doc.asp?symbol=E/2014/86).

United Nations Security Council. 2004. The rule of law and transitional justice in conflict and post-conflict societies. Report of the Secretary-General S/2004/616. (available at http://www.ipu.org/splz-e/unga07/law.pdf).

United States Agency for International Development (USAID). 2011a. Country profile. Property rights and resource governance: Cambodia. Washington DC (available at http://usaidlandtenure.net/sites/default/files/country-profiles/full-reports/USAID_Land_Tenure_Cambodia_Profile.pdf).

USAID. 2011b. The future of customary tenure: options for policymakers. Property Rights and Resource Governance Briefing Paper #8. Washington DC. (available at http://usaidlandtenure.net/sites/default/files/USAID_Land_Tenure_2012_Liberia_Course_Module_1_Future_of_Customary_Tenure.pdf).

USAID. 2013. Country profile. Property rights and resource governance: Burma (available at http://usaidlandtenure.net/sites/default/files/country-profiles/full-reports/USAID_Land_Tenure_Burma_Profile.pdf).

Velasquez-Ruiz, M. A. 2015. Land tenure security in Colombia: For Whom? What for? The relativity of the property rights regime in the context of transitional justice and economic globalization, Paper presented at the World Bank Conference on Land and Poverty, Washington DC, 23-27 March (unpublished).

World Bank. n.d. Themes of the LGAF. Washington, DC (available at http://web.worldbank.org/WBSITE/EXTERNAL/EXTDEC/EXTRESEARCH/EXTPROGRAMS/EXTARDR/EXTLGA/0,,contentMDK:23379366~pagePK:64168445~piPK:64168309~theSitePK:7630425,00.html).

Wright, G., Metzner, R. & Chevis, H. 2000. Using mediation to solve fisheries issues in the Guidelines for Voluntary Resource Sharing Process. Perth, Fisheries Western Australia (available at http://www.fish.wa.gov.au/Documents/ifm/Using_Mediation_to_Solve_Fisheries_Issues_in_the_Guidelines_for_Voluntary_Resource_Sharing_Process_2000.pdf).