World Bank Conference on Land and Poverty, March 2015 Margret Vidar, FAO and Lorenzo Cotula, IIED with Rachael Knight, Namati and Thomas F McInerney

 FAO Technical Guide for lawyers and legal services providers  Legal nature of the VGGT and links with binding international law  Roles and responsibilities of private sector lawyers in large scale land acquisitions  Conclusions

 Responsible governance of tenure and the law: a technical guide for lawyers and legal services providers (forthcoming 2015)  Scope: legal aspects of governance of tenure of land fisheries and forests  Part of a series of Technical Guides to support VGGT implementation  Collaboration between FAO and IIED, with contributions also from Rachael Knight (Namati) and Thomas F McInerney

 Issues: legal value of VGGT, legitimate tenure rights, legal assessments, law making, law implementation, dispute resolution  Not just on large-scale land acquisitions  Target audience: ◦ Lawyers working for or in public institutions; ◦ Lawyers working for or in civil society, NGOs or communities; and ◦ Lawyers working for or in the private sector

 VGGT = soft law  Not legally binding on states or others  But important linkages: ◦ Reflects existing international law ◦ Meant to be consistent with international law ◦ Should be applied consistently with international obligations (as well as voluntary commitments)  Enjoy high level of legitimacy ◦ Through process before and during CFS ◦ Additional endorsement by major international bodies

 Primarily human rights law, e.g.: ◦ the right to enjoy one’s property (UDHR); ◦ the right to an adequate standard of living, including food and housing (UDHR, ICESCR); ◦ Process rights, such as the right to participate (ICCPR)  Negative impacts on legitimate tenure rights may constitute a violation of human rights

 TG for lawyers addresses the role of all types of legal professionals in the context of LSLA  Focus here is on lawyers advising investors: ◦ Advise on legal standards to comply with; ◦ Negotiate sales and leases in proper form; ◦ Process transaction and registration documents

 International Bar Association: draft guidance for bar associations and business lawyers on the implementation of the UN Guiding Principles on Business and Human Rights  Future incorporation into standards of conduct of lawyers in national bar associations  VGGT refer to and build on UNGP  Responsibility to respect human rights

 Weak governance  Inadequate laws  Inadequate implementation of law  Lack of recognition of customary rights  Lack of reliable records of tenure rights  State ownership of all or most land  Risks of non-respect for legitimate tenure rights of groups and individuals

 Assess national legislation for compliance with VGGT: identify gaps and possible responses  Identify and negotiate with holders of legitimate tenure rights, whether or not they are fully recognized by law or adequately registered  Undertake in-situ investigation of the land and who is using it

 Simply avoiding breaches of national law is no longer sufficient  Negotiating solely with governments at national and local levels is not sufficient - written contracts with tenure rights holders should be concluded  The costs of due diligence and multiple negotiations and contracts, including benefit sharing, need to be factored into the cost of investment

 Recognize that holders of legitimate tenure rights may be in a weaker position ◦ Financial, legal education etc.  Recognize that there is a conflict of interest if an investor pays for lawyers on both sides  Establish arms-length mechanisms to enable legitimate tenure rights holders in rural areas to be able to engage meaningfully in negotiations

 All legal professionals should consider the human rights implications of their work  Soft law such as VGGT provide guidance based on international law and best practices  TG for lawyers aims to assist legal professionals in supporting the implementation of the VGGT and related human rights standards