Land Tenure Security in Colombia: For Whom? What For? The relativity of the property rights regime in the context of Economic Globalization and Transitional Justice Marco Velásquez-Ruiz PhD Candidate, Osgoode Hall Law School – York University

Objective of the presentation: Illustrate the challenges around the conceptualization and articulation of land tenure security (LTS) in Colombia. Structure: Hypothesis formulation LTS in the context of International Investment Agreements and the protection of foreign investors LTS in the context of Transitional Justice and restorative/redistributive regulatory measures Case study: The Embera Katio people of the Alto Andágueda Resguardo (Territorial restitution at mining zones). Concluding remarks

Hypothesis: Within the framework of Colombia’s development strategy, there is an essential tension between two policies with divergent normative rationales, as they are both projected on the management of land and natural resources in opposite directions. a. In the context of economic globalization, the creation of a stable legal environment of operation to foreign investors by means of the systematic conclusion of International Investment Agreements, so as to attract transnational capitals and attain economic growth. b. In the context of a transitional justice project, the production of socioeconomic structural transformations in the country’s rural side by means of the implementation of restorative and redistributive regulatory actions, in order to achieve sustainable peace in the country. As LTS is a key element for the implementation of both policies, it becomes a contested concept.

What is land tenure security? For the purposes of this presentation, LTS is the condition under which property rights on lands are formally allocated in head of an individual or a community, and whose enforcement by public authorities is effective. World Bank, “The World Bank Land Tenure Policy” (2011)

LTS in the context of International Investment Agreements and the protection of foreign investor Objective: Colombia wants to become a relevant actor in the global economic scenario by assuming the role of land and natural resources provider. Task: Attraction of foreign capitals in order to access financial resources and technological capacity. Action: Systematically conclude IIAs with capital-exporting countries, so as to provide a stable legal environment that incentivize the arrival of transnational capitals. LTS is depicted as a legitimate expectation foreign investors own with respect to the conduct of the state (regulatory authority), additional to the regular domestic normative framework on property rights, and a consequence of the stable legal environment propitiated by the IIAs. Clear and enforceable property rights Predictability from the conduct of public authorities

LTS in the context of Transitional Justice and transformative (restorative/redistributive) regulatory measures Objective: Colombia wants to achieve durable peace after a long-term conflict which is grounded on structural inequalities and socioeconomic gaps. Task: Address structural causes and produce structural transformations regarding the access and use of scarce resources (provide retrospective and prospective socioeconomic justice). Action: In accordance to the transitional justice project, produce transformative regulatory measures, including territorial restitution procedures at the rural side. LTS is depicted as a key formal supplement to crystalize transitional justice regulatory measures, and consequently to ensure the realization of socioeconomic justice in the context of durable peace. Clear and enforceable property rights Predictability from the conduct of public authorities

Case study: The Embera Katio people of the Alto Andágueda Resguardo General context: - Long-term armed conflict grounded on inequalities, mostly affecting populations located at the rural side: peasants, indigenous peoples and afro-Colombian communities. - Conflict dynamic: appropriation of land and natural resources through violent dispossession (forced displacement) and subsequent legalization of titles (collusion of public servants). - Global economic liberalization, assumption of a model of development built around the extractive industry and monoculture crops (development locomotives). - Colombia concludes International Investment Agreements with the principal capital-exporting countries so as to attract foreign investment to boost the country’s “development locomotives”

Case study: The Embera Katio people of the Alto Andágueda Resguardo Specific Context: : The Embera Katio Peoples’ Alto Adágueda Resguardo is recognized by Colombian government. ( Hct., families, communal title) : High level of violence associated to the internal conflict provokes the forced displacement of the Embera Katio people located at the Alto Andágueda Resguardo : Colombian government grants 40-year concession contracts (mining titles) all over the country. Particularly, some titles granted to the subsidiaries of three large mining multinationals superpose with the Alto Andágueda Resguardo: AngloGold Ashanti (UK/South Africa); Glencore (Switzerland); Continental Gold (Canada).

Case study: The Embera Katio people of the Alto Andágueda Resguardo Legal procedure and decision: : Colombia embarks on a transitional justice Project (Law 1448 and supplementary regulation) that seeks to empower victims by recognizing their rights to justice, truth and reparation. Territorial restitution as a fundamental component : A territorial restitution process on behalf of the Embera Katio communities is activated by the National Authority on Land Restitution before a Land Restitution Tribunal : A Lower Court orders precautionary measures (injunction) in favor of the Embera Katio people, including the suspension of the mining titles superposed to the territory under claim (62% of the resguardo).

Case study: The Embera Katio people of the Alto Andágueda Resguardo Legal procedure and decision: : The Colombian National Mining Authority files a constitutional action (Acción de Tutela) before The Land Restitution Tribunal, and against the injunction ordered by the Lower Court, on the grounds of the protection of mining companies’ property rights. The Tribunal dismisses the solicitude and maintains precautionary measures : The Land Restitution Tribunal orders the territorial restitution of Hct. To the Embera Katio people of the Alto Andágueda Resguardo, and maintains the suspension of the mining titles granted to the mining companies based on the need to secure LTS to the indigenous community and due to the lack of prior consultation regarding the use of their ancestral lands.

Case study: The Embera Katio people of the Alto Andágueda Resguardo - However, the Tribunal did not take a step forward in his decision regarding the situation of the mining titles, which would have been their definitive annulment. Instead, it maintained the suspension until direct consultation with communities could be conducted. The reason: foreign investor’s legitimate expectations. - Regulatory chill effect: the land restitution program has lost dynamism and effectiveness after the progressive decision. Allegedly, transitional justice judges have been warned on the risk faced by the state due to the obligations it has upon the conclusion of IIAs.

CONCLUDING REMARKS - The management of land and natural resources is central in the current global governance landscape - The state (still) has a central role in the management of land and natural resources: regulatory agency. - As such, it has to act in a consistent way, that is to say, in accordance with its normative order. - In case of conflicts between competing interests, like the one here introduced, it has to find mechanisms to provide sustainable settlements. - There is a need of further research on the impact of international investment law on the governance of land and natural resources.