Several international human rights instruments link land issues to the enjoyment of specific substantive human rights, including non-discrimination and the rights to adequate housing, food, water, health, work, cultural integrity, freedom of opinion and expression, and self-determination, as well as the right to participate in public affairs and cultural life. As indicated in the ILO Convention No.169 (articles 13 and 14), “The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised”. In this sense, an actual ‘right to land’ was added to international human rights law with the adoption of the Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) (article 17) in 2018. Key provisions in the United Nations Declaration on the Rights of Indigenous People (UNDRIP) (articles 25 and 26) also protect the rights of indigenous peoples to land, territories and national resources.
Land is the basis for agriculture and other rural land uses, encompassing soils, climate, vegetation, topography and other natural resources. The livelihoods of many, particularly the rural poor, are based on secure and equitable access to and control over land. It is the source of food and shelter; the basis for social, cultural and religious practices, and a central factor in economic growth. Land is governed by legislation that determines the rights associated with it, such as property rights and expropriation rights.
In order to understand the range of instruments related to land and resources issues, the Danish Institute for Human Rights has created a Human rights & Land Navigator, which connects responsible land governance with human rights.
Read more
While land offers opportunities for development and the realisation of human rights, there is a risk that the rural poor could be evicted or lose access to land if their right to land is not secure. Without security of tenure, people’s ability to secure sufficient food and to enjoy sustainable rural livelihoods is impaired, particularly that of Indigenous Peoples.
Rights related to the realisation of land and resource rights include, among others:
Right to an adequate standard of living, including adequate food and housing
“in many country contexts women’s land rights – both individual and collective – are not recognised or are undermined in practice. Often, this also has negative flow-on effects where land-related processes such as consultation, agreement making, resettlement and compensation payments take place, as women are explicitly or de facto excluded from, or marginalised, in such processes. This is particularly significant considering that women frequently play a key role in terms of managing land and water, sources for food, and in land-based industries, such as agriculture.”
Exacerbating the issue, the Institute notes that “while many NAPs address the topic of land and natural resources, none to date address how the rights of women in particular may be impacted by businesses’ use of land and interaction with land rights.”
Likewise, land that is undocumented becomes highly vulnerable to land grabbing and expropriation, and could also generate conflict. For instance, according to a Global Witness study, in 2017 four people a week, including a number of indigenous peoples and local communities, were killed worldwide protecting their land, from business exploitation. Extractive industries around the world, agribusiness in Latin America and illegal wildlife trade in Africa were, during 2017, the biggest drivers of violence. Land Matrix has recorded around 1,000 projects worldwide in the fields of agriculture, tourism and forestry that include land transactions that cover nearly 40 million hectares. Many of these investments occur on land that people live on and use to support their livelihoods.
Many countries do not have sufficient mechanisms to protect local land and take account of local interests. In that regards, it is quite relevant to make a reference to the UN Guiding Principle on Business and Human Rights, Commentary to UNGP 11 that states:
“The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of State’s abilities and/or willingness to fulfill their own human rights obligations, and does not diminish those obligations. And it exists over and above compliance with national laws and regulations protecting human rights”.
Furthermore, the International Work Group for Indigenous Affairs stated in 2017 that corporations need to respect indigenous peoples’ rights to land and natural resources before undertaking any projects, and that the obligation is not dependent on the national legislation of the State in which they operate, or on whether the rights to lands and natural resources have been demarcated and formalised.
According to the United Nations High Commissioner for Human Rights: “Business enterprises, which are often influential actors in the governance of land and other natural resources, including through market mechanisms, have human rights-related responsibilities. National and transnational companies involved in land deals, investments and extraction and other activities involving the acquisition, use or alteration of lands bear a responsibility not to infringe on the rights of other users and owners through their activities, and to address any adverse impact arising as a result of their actions.”
In December 2022, the UN Committee on Economic, Social and Cultural Rights acknowledged the issue of land rights in relation to businesses in the General Comment No. 26. It pointed out that “The obligation to protect entails a positive duty to take legislative and other measures to provide clear standards for non-State actors such as business entities and private investors, especially in the context of large-scale land acquisitions and leases at home and abroad.” (para. 30). The Committee also notes that the obligation applies extraterritorially, in particular to land transfers fostered by development financial institutions and other foreign financial actors (para. 40).
The UN Guiding Principles on Business and Human Rights (UNGPs) acknowledge in the Commentary to UNGP 3 the need for States to review whether laws provide necessary coverage to provide an environment conducive to business respect for human rights, and in particular mention the need to give greater clarity in some areas such as those governing access to land, including entitlements in relation to ownership or use of land, which is often necessary to protect both rights-holders and business enterprises.
Responsible investments should do no harm, safeguard against dispossession of legitimate tenure right holders and environmental damage, and should respect human rights. Effectively addressing land tenure challenges can help companies to improve their performance and support more sustainable development outcomes in communities where they and their suppliers operate.
The United Nations Food and Agriculture Organization (FAO) developed in 2012 the Voluntary Guidelines on the Responsible Governance of Tenure, which promotes responsible governance of tenure of land, fisheries and forests by outlining the principles and internationally accepted standards for the responsible governance of tenure. The DIHR’s Human Rights & Land Navigator shows how the VGGT are underpinned by human rights standards and explains why these are relevant by referencing human rights bodies’ comments. The Guidelines states, among others, that business enterprises have a responsibility to respect human rights and “legitimate tenure rights”, and that they should act with due diligence to avoid infringing on the human rights and legitimate tenure rights of others. The International Finance Corporation (IFC) also approved in 2002 its Performance Standard 5 onLand Acquisition and Involuntary Resettlement. The Standards are contractually binding on certain projects receiving IFC finance, and it is accompanied by a Guidance Note and a Resettlement Handbook that gives detailed guidance on managing resettlement and associated impacts.
Furthermore, the Principles for Responsible Investment in Agriculture and Food Systems (RAI), adopted in October 2014, promote responsible conduct among a variety of stakeholders across all types of agricultural investments (public and private, large and small). The RAI recognises the need to respect legitimate tenure rights as an essential component for greater and more sustainable investment in agriculture and food systems.
In 2010, the United Nations Conference for Trade and Development, FAO, International Fund for Agriculture Development and the World Bank adopted seven principles for Responsible Agricultural Investment that Respects Rights, Livelihoods and Resources, which covers all types of investment in agriculture, including between principal investors and contract farmers.
Some Multi-stakeholder initiatives have developed guidance for its members in relation to land. The Roundtable on Sustainable Biomaterials (RSB), for example, makes a reference on its RSB Principles and Criteriato the respect for indigenous peoples’ right to their traditional lands, territories and resources. Also, the Global Roundtable for Sustainable Beef adopted the Principles and Criteria for Global Sustainable Beef, which state on its Principle 2 that land and property rights are acknowledged and respected throughout the value chain. Likewise, the Principles for Responsible Investment in Farmland recognises the respect for the existing use and ownership rights to land and that investment managers and operators acting on investors’ behalf are required to implement processes for land acquisitions.
Governments have also adopted legislation in order to secure land rights. Brazil launched a Legal Land Programme in 2009 to regularise public land titles in the Amazon region, fight land grabbing and promote sustainable development initiatives. Malawi has also adopted aNational Land Policy with the following objectives: ensure secure tenure and equitable access to land without discrimination to all citizens of Malawi, ensure accountability and transparency in the administration of land matters, ensure that existing land rights, particularly customary rights of smallholders, be recognised; and instil order and discipline into land allocation and land market transactions to curb land encroachment.
Private sector efforts include Nestle’s Commitment on Land and Land Rights in Agricultural Supply Chains, by which it includes, on its Responsible Sourcing Guideline for high risk commodities, provisions that suppliers should ensure they have a zero tolerance for land grabs. In addition, PepsiCo’s Land Policy states a commitment to engage with appropriate industry and other groups to positively impact and respect all legitimate land tenure rights and the people who hold them. Unilever’s Responsible Sourcing Policy states that land rights of communities will be protected and promoted, and that there is a zero tolerance of land grabbing within the supply chain.
Land use and protection of land rights are important factors for the implementation of most of the SDGs under the 2030 Agenda for Sustainable Development, as they are relevant for all three dimensions of sustainable development; social, economic and environmental. They relate directly to a large number of SDGs and targets either because land is required for their achievement and there are human rights implications related to the acquisition and use of this land (e.g., ending hunger (SDG 2), affordable and clean energy (SDG 7), industry, innovation and infrastructure (SDG 9), responsible consumption and production (SDG 12); or because pollution and degradation of land can lead to environmental consequences which could impede the achievement of other SDGs (e.g., clean water and sanitation (SDG 6), climate change (SDG 13) and life on land (SDG 15)). Protection of land rights also relates to reduced inequalities (SDG 10) and gender equality (SDG 5).
Ensuring ownership and control over land and natural resources is recognised as a specific enabling factor for ending poverty through the existence of SDG target 1.4. It is also widely recognised that strengthening of the land rights of communities, including but not limited to indigenous peoples, is a critical factor for ensuring conservation of many types of ecosystems.
Therefore, business respect for human rights in all activities with direct or indirect impact on land and land rights can have wide ranging implications for SDG achievement.
The Ministry of Energy, through the Division of Participation and Dialogue, will promote the creation of formal and steady opportunities for dialogue between businesses and communities in localities where they expect to install energy projects.
i. Fundamental Pillar 1: The State’s obligation to protect human rights
Strand 2 [Eje nº 2]: Encourage the creation of regulations and strategies that promote respect for human rights in the development of business activities.
The Ministry of Mines and Energy [Minminas] will build the human rights risk map for the mining and energy sector in prioritised territories.
(…)
The Ministry of Agriculture and Rural Development will carry out actions to contribute to the formalisation of property rights.
Strand 5 [Eje nº 5]: Articulating spaces for social dialogue and effective participation
(…)
The National Infrastructure Agency (ANI) will contribute to the reduction of impacts and the improvement of the living conditions of the social units located in the areas of land required for the development of the works.
Pillar II baselines: Human rights as a moral and ethical obligation
Scope and content of the obligation to respect human rights
What human rights? [page 30]
These rights are fleshed out in a series of other specific instruments, such as the OECD Guidelines for Multinational Enterprises.
…As for the external impacts of a business’s operations, this might encompass forced land seizure and population displacement, the ban on requisitioning or destroying natural resources that are vital to a local community, and the ban on destroying cultural heritage.
The AgenceFrançaise de Développement (AFD) [page 28]
… The owners of projects with the highest social and environmental risks are asked to implement grievance management mechanisms to deal with alerts, questions, recommendations and requests from all interested parties at any time. In parallel, the AFD and PROPARCO define the structure and organization of specific grievance management mechanisms in the environmental and social fields. These mechanisms will enable third parties affected by AFD- or PROPARCO-funded projects to lodge complaints for environmental and/or social reasons (pollution, destruction of natural resources, human rights, land grabbing, forced displacement, etc.). These initiatives took effect in 2016 …
15. Economic Sectors and Human Rights
The agricultural and food sector [page 32]
The strategic importance of national food security and economic opportunities in the agricultural sector have led a number of countries and businesses to invest (and support investment) in agrifood production. Given this large-scale investment, which often involves large-scale land purchases, the international community has sought to implement guidelines and directives to regulate these projects. Two major initiatives have been launched:
The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (also known as the VGGT), adopted by the Committee on World Food Security (CFS) in May 2012
…
France supports and is politically, technically and financially committed to adopting and implementing these texts. Working with actors involved in French cooperation efforts, it developed the Guide to Ex-Ante Analysis of Agricultural Investment Projects that Affect Land and Property Rights to facilitate the enforcement of these principles …
Actions Underway
Partner States are encouraged to apply the Voluntary Guidelines on the Responsible Governance of Tenure of Land (VGGT) and the Principles for Responsible Investment in Agriculture and Food Systems (RAI).
Recommendations in the Guide to Ex-Ante Analysis of Agricultural Investment Projects that Affect Land and Property Rights are being integrated into the AFD’s due diligence procedures in the land, social and environmental fields.
The Federal Government has undertaken to implement the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests and has initiated a number of development cooperation projects to assist governments of developing countries in enforcing the land-tenure rights of marginalised groups, in strengthening stakeholders in civil society and in raising awareness among companies, for example those investing in agriculture, and gaining their support for the application of these guidelines with a view to preventing illegal actions such as land-grabbing.
CHAPTER TWO: SITUATIONAL ANALYSIS AND THEMATIC AREAS OF FOCUS
2.3 Land and Natural Resources [Page 12-14]
Land is a prerequisite for the enjoyment of economic, social and cultural rights relating to an adequate standard of living, housing, food and natural resource benefits sharing. The Constitution states that “all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals”. However it is often a source of conflict due to population pressure, rapid urbanisation, environmental degradation, land-intense large-scale projects such as mining, oil and gas and commercial agriculture, all of which result in competition for available productive land.
International human rights law guarantees against arbitrary deprivation of property and provides a standard of conduct to be followed in case of evictions. Furthermore, there are additional protections for indigenous people in recognising the unique importance, cultural and spiritual values that they attach to their lands, territories and natural resources.2 These guarantee land rights for indigenous people and provide protections against displacement from their lands. They also provide for consultation and consent to development projects. Several SDGs targets relate to land and natural resources3.
Kenya has a relatively progressive constitutional and statutory framework for the ownership, management and access to land and natural resources found within her boundaries. The Constitution provides that land, whether public, private or communal, shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable. The Constitution also guarantees the right to property, and the protection from arbitrary deprivation of one’s property including land. In addition to the Constitution, the Land Act, 2012 deals with public land under Article 62 of the Constitution, private land under Article 64 of the Constitution, and community land under Article 63 of the Constitution. Further, the Community Land Act, 2016 deals more substantively with community land which is vested in and held by communities identified on the basis of ethnicity, culture or similar community interest. All matters relating to compulsory land acquisition, including access to land for business purposes, are governed by the Land Act, 2012.
The country has made strides in the legal and policy protection of women’s property rights as relates to ownership, inheritance, management and disposal. The 2009 National Land Policy amongst other provisions cites the need to protect women’s right to inherit land and the land rights of widows and divorced women. It also distinguishes the inheritance rights between married and unmarried women directing the Government to secure the rights of unmarried daughters. The Matrimonial Property Act, 2013 provides that a married woman has equal rights as a maried [sic.] man to acquire, administer, hold, control or dispose of property whether movable or immovable. The Act further provides that ownership of matrimonial property vests in the spouses according to their contribution, either monetary or non monetary, in its acquisition and upon divorce should be divided between the spouses. The Marriage Act, 2014 provides that parties to a marriage have equal rights and obligations at the time of the marriage, during and at the dissolution of the marriage. However despite these laws, there are still obstacles including cultural traditions, historical injustices and lack of awareness that inhibit women from accessing and owning their fair share of property and attendant rights.
Furthermore, the Constitution guarantees access to information, community empowerment and inclusion in decision-making and benefit sharing from exploitation of natural resources. Additionally, Kenya has various laws and policies to ensure that communities hosting extractives projects benefit through revenues, employment of local people and utilisation of local goods and services.
The NAP consultations identified the following concerns related to land, natural resource development and business:
Lack of knowledge of existing compensation and resettlement framework for the voluntary and compulsory acquisition of land;
Lack of guidance on community consultations in the context of natural resources governance resulting in inadequate participation of local communities in decision making;
Land adjudication has not been undertaken in some areas where businesses are operating or propose to operate, complicating decisions on who the rightful parties to be consulted and compensated are;
The Mining Act has not been fully operationalised with regards to the sharing of revenues, effectively denying local communities impacted by the operations of mining companies the rights and protections under the law;
Cultural and historical barriers to access to land by women, minorities and marginalised groups such as indigenous persons. These barriers limit these groups’ participation in and decision-making power over land-related issues; and
Lack of sustainable benefits for host communities from the exploitation of natural resources despite the constitutional imperative for equitable sharing of benefits.
2.7 Access to Remedy [Page 14-15]
Article 20(1) of the Constitution provides that the Bill of Rights binds all persons, including businesses. Indeed, since the promulgation of the Constitution in 2010, courts have adjudged several businesses to be in violation of human rights and awarded victims varying remedies. Furthermore, there are a number of legislative provisions regulating business conduct to protect those within Kenya’s jurisdiction from business-related human rights violations.[…]
The breach of these and other relevant laws may result in administrative and judicial sanctions. Judicial avenues include the Human Rights Division of the High Court, the Environment and Land Court and the Employment and Labour Relations Court.[…]
Despite these legal protections, the community consultations conducted as part of the NAP process revealed structural and procedural barriers to access to remedy, including:
[…]
iv. There have been instances where human rights defenders who have lodged cases against businesses, especially land and environment grievances, have reportedly faced death threats and other forms of intimidation which they hardly report to authorities. Such hostility may instil fear in others who may wish to lodge complaints, robbing communities and individuals of the protection that the law could have offered against business-related abuses; and
CHAPTER THREE: POLICY ACTIONS
3.1. Pillar 1: The State Duty to Protect [Page 17]
Policy Actions
The Government will:
v. Expedite land adjudication and registration with a view to securing the protection of land owners/users and communities especially in areas ear-marked for major projects;
vii. Sensitise relevant sections of the public especially women and other marginalised and minority groups on –
Land laws, including resettlement and compensation frameworks; […]
viii. Develop procedural guidelines for use by businesses, individuals and communities in their negotiations for land access and acquisition. These guidelines will ensure and safeguard the participation of women, persons living with disabilities, youth, children and other marginalised groups;
ix. Work with stakeholders to develop a natural resource revenue management policy and regulatory framework for administering and managing natural resource revenue paid to host communities. This framework should seek to promote equity, inclusivity and community decision-making and will include training to enhance the capacity of communities to manage their affairs. It will also serve to guide the operationalisation of mining revenue as envisaged by the Mining Act, 2016;
3.3. Pillar 3: Access to Remedy
Policy Actions
A) State-based judicial and non-judicial remedies [Pages 19-20]
The Government will:
i. Enforce all applicable laws as well as respect internationally recognised human rights laws and standards as they relate to land access and acquisition and natural resources, environment and revenue management;
CHAPTER FOUR: IMPLEMENTATION AND MONITORING
ANNEX 1: SUMMARY OF POLICY ACTIONS
Strategic Objective
Policy Actions
Key Actors
Strategic Objective 1:
Enhance existing policy, legal, regulatory and administrative framework for ensuring respect of human rights by business through legal review and development of specific guidance for business
Expedite land adjudication and registration with a view to securing the protection of land owners/users and communities especially in areas ear-marked for major projects.
Ministry of Lands and Physical Planning, NLC,
Sensitise relevant sections of the public on:
Land laws, including resettlement and compensation frameworks;
Labour laws and the rights of migrant workers; and
Environmental laws and standards.
Ministry of Lands& and Physical Planning, Ministry of Labour and Social Protection, Ministry of Environment and Forestry, NEMA, NLC
Develop procedural guidelines for use by businesses, individuals and communities in their negotiations for land access and acquisition.
Ministry of Lands and Physical Planning, NLC, OAG&DOJ
Work with stakeholders to develop a natural resource revenue management policy and regulatory framework for administering and managing natural resources revenue paid to host communities. It will also serve as a guide in the operationalisation of mining revenue as envisaged by the Mining Act, 2016.
Ministry of Mining, Ministry of Environment and Forestry
Strategic Objective 3:
Enhance access to justice for victims of business-related human rights abuses
Enforce all applicable laws as well as respect internationally recognised human rights laws and standards as they relate to land access and acquisition and natural resource management.
Judiciary, OAG&DOJ, Administrative Tribunals
Improve access to the Human Rights Division of the High Court, Employment and Labour Relations Court and the Environment and Land Court to ensure that they are accessible avenues for remedying business-related human rights abuses.
CHAPTER II. Actions to improve the duty of the state in protecting human rights
11. Strengthen the legal framework to ensure citizens’ right to live in a safe and healthy environment, prevent and eliminate negative impacts on human rights in the implementation of mining, quarrying, heavy industry, road and transport and energy infrastructure projects, resettle land evictions, value their property and provide compensation
Actions and measures to be implemented:
Ensure and protect the right of pastoralists and citizens living in active mining, road construction, transport and heavy industry areas to live in a safe and healthy environment and be protected from pollution and loss of ecological balance, identify the scope of impact, assess laws and regulations and take measures to ensure and protect their right to information, property rights and cultural rights, and strengthen the duties and responsibilities of state institutions, local government bodies and business enterprises in preventing, monitoring and eliminating negative impacts.
Time frame: 2023-2025
Criteria: The methodology for the assessment of environmental damage and the calculation of compensation will be reviewed and necessary additions and amendments will be made in relation to the determination of the area of impact and compensation for damage. Proposals for improving the legal provisions will be developed and submitted for approval.
Implementing organisations: MMHI [Ministry of Mining and Heavy Industry], MET [Ministry of Environment and Tourism], MRPAM [Mineral Resources and Petroleum Authority of Mongolia]
Jointly Implementing organisations: Relevant ministries and organisations, MoJHA [Ministry of Justice and Home Affairs], MoC [Ministry of Culture], AGS [Authority of Government Supervisory], Secretariat of the NCHR [National Committee for Human Rights], Governors of all levels.
Evaluate the performance of laws and regulations governing relations related to land displacement, resettlement and forced eviction, and take measures to protect citizens’ land tenure rights and improve procedures for valuing property and calculating compensation
Time frame: 2023-2025
Criteria: An assessment will be carried out and conclusions and suggestions will be made. Measures will be taken to improve the relevant procedures.
Implementing organisations: Ministry of City and Urban Development (MCUD), Agency for Land Administration and Geodesy and Cartography (ALAMGC).
Jointly implementing organisations: MET [Ministry of Environment and Tourism], MMHI [Ministry of Mining and Heavy Industry], MRTD [Ministry of Road and Transport Development], MoE [Ministry of Energy].
Assess relevant laws, regulations and standards related to urban planning and public services from the perspective of a human rights-based approach, take action to improve them, enforce implementation and increase accountability in case of violations.
Time frame: 2023-2025
Criteria: An assessment will be made and improvement measures will be carried out. Enforcement activities will be carried out.
Implementing organisations: MCUD, ALAMGC
Jointly implementing organisations: Governors of all levels.
Including ‘business and human rights’ in the Netherlands’ foreign policy
Protecting human rights defenders
“The work of human rights defenders is vital to the protection of human rights. Examples include trade union leaders fighting for … land rights for local communities …
Human rights defenders fighting for indigenous, land and environmental rights − often in connection with economic activities − are some of the most vulnerable human rights defenders, with female defenders facing additional risks. The work of human rights defenders is increasingly undermined by strategic legal proceedings against public participation. 3,100 incidents were reported between 2015 and 2021 and in 2021 358 human rights defenders around the world lost their lives as a result of state and non-state violence. Many of these defenders (59%) were fighting for indigenous, land and environmental rights, often in connection with economic activities.
In accordance with international law governments are required to protect human rights defenders against attack from others, to protect and guarantee their rights and to refrain from any activities that violate their rights. Protection of and support for human rights defenders is therefore one of the priorities of the Netherlands’ human rights policy. Capacity building and protection programmes offer assistance at various levels, by means of projects, multilateral efforts and diplomatic support.
The Human Rights Fund (MRF) strives to protect and promote human rights around the world, with a particular focus on environmental activists and land rights defenders. Furthermore, delegated MRF funds contribute to the Lifeline Consortium which focuses, among other things, on indigenous populations and environmental protectors. It also contributes to Planet Protectors and to Shelter and Resilience for Human Rights Defenders, thus supporting indigenous land and environmental defenders in Central America. Through the Power of Voices (PoV) partnerships the Netherlands also supports human rights defenders who highlight business-related violations of labour and environment rights or who identify investments which have a negative impact on people and their environment. Local governments and civil society organisations, including representatives of indigenous people, work together as strategic partners to strengthen the rights, including land rights, of indigenous populations and enhance respect for their environment. The Netherlands aims to improve access to its protection and capacity-building programmes for human rights defenders working on violations resulting from business practices.
Multilateral forums pay systematic attention to the most vulnerable human rights defenders, including those advocating for indigenous, land and environmental rights. The Netherlands consistently presses for specific mention of these target groups in the official texts negotiated in the Human Rights Council and the Third Committee of the UN General Assembly.” pp. 38, 39 and 41.
Improved protection of Colombian human rights defenders
“In Colombia the Netherlands offers financial assistance to the Colombian Commission of Jurists (CCJ), a human rights organisation that contributes to the development of safety and protection mechanisms for Colombian human rights defenders. They do this by developing strategies for litigation aimed at protecting and defending land belonging to farmers, indigenous populations and African heritage communities. The CCJ also raises visibility for human rights defenders and civil society leaders at local, national and international levels and promotes civil society participation in local and national institutions dealing with the prosecution, investigation and punishment of serious violations of human rights defenders’ rights. In this way the organisation helps strengthen the voice of human rights defenders in the Colombian government’s decision-making processes and improve the Colombian legal system. This is important in combating human rights violations resulting from business activities.” pp 40 and 41.
Development cooperation
Sustainable trade with and investment in developing countries
“… The interests and specific circumstances of developing countries must be taken into account when drafting national, European and international agreements aimed at improving the sustainability of trade and investments. Examples include developing standards on deforestation and the climate, the circular economy, land use rights, labour, foreign trade and investments and RBC. The cornerstone of this is to determine the development impact of efforts to make trade and investment more sustainable, especially the impact on vulnerable groups such as indigenous peoples, small-scale producers, workers and agricultural labourers, with a particular focus on women and young people. … Developing countries receive several forms of support. … efforts are made to increase the sustainability of international value chains by working jointly with businesses, civil society organisations and other levels of government on improved procurement practices and new revenue models with a focus on work, a living wage and income, land rights and land use and the elimination of child labour.” p. 46
The Nigeria NAP provides a list of existing constitutional obligations, domestic legislation, internation obligations, and police and administrative steps. This breakdown only looks at the list of challenges and the implementation of the 3 pillars of the UNGPs.
8.6 CHALLENGES … “i. Lack of Adequate human rights, conflict and environmental impact assessment when land is being acquired for development or business purpose. (p.154) j. Lack of government involvement in observing stakeholder’s engagement and consultation to the detriment of the host communities.” (p.154)
PILLAR 1 – STATE DUTY TO PROTECT HUMAN RIGHTS ACTIONABLE ITEMS D. FREE, PRIOR AND INFORMED CONSENT “Free, Prior and Informed Consent (FPIC) of the host community must be ensured to enable a community have the right to give or withhold consent to proposed project that may affect the lands they customarily own, or otherwise use. FPIC is recognized by the jurisprudence of international treaty bodies. To do this government will use participatory methods of stakeholder identification and analysis to ensure that before the commencement of any project. In this regards, it is necessary to build the capacity of community leaders and decision makers to negotiate with businesses and ensure that their rights and protected at all times.” (p.158)
F. ENVIRONMENT “When acquiring land for development or business, government must ensure the conduct of human rights conflict and environmental impact assessment. In respect of environmental hazards and workplace safety, there will be periodic monitoring and inspection of company premises, operations and surroundings of manufacturing, construction, and extractive industries among others to ascertain their compliance with environmental standards.” (p.158)
3. The Corporate responsibility to respect human rights
3.2 Responsible Business Conduct [pages 31-32]
The 13th principle clarifies what companies’ responsibility to respect human rights involves:
An enterprise may cause or contribute to adverse human rights impacts if for example …the living conditions of the local community that are directly affected by the company’s operations decline without prior explanation from or dialogue with the relevant parties, including the local authorities. Impacts on the climate and the environment resulting from the enterprise’s activities, for example through land use, exploitation of natural resources, greenhouse gas emissions or releases of hazardous substances, may also have adverse impacts on a broader range of human rights, such as minority and indigenous people’s rights or the right to life, health, food, water or adequate housing. If a company is responsible for such impacts, it is also responsible for addressing them.
According to the MINJUSDH registry, situations of violation of the rights of human rights defenders are due to economic informality, the lack of legal security in the titling of communal lands, the resulting land trafficking, and criminality associated with illegal mining and illegal logging, and drug trafficking. However, the civil society database identifies violations in both formal and informal activities, also within the context of socio-environmental conflicts. – page 47
Mining
Mining is one of the most important economic activities in the country and, in recent years, due diligence mechanisms have been widely adopted for the formal mining sector. Progress has been made in the negotiation of land transactions due to the dialogue mechanisms and, therefore, it is essential to strengthening them considering the land-use planning policy. In addition, the prevention and management of the environmental impacts of mining activity require improvements, such as better quality information on socio-environmental baselines and strengthening the administrative and legal capacity of the competent environmental oversight entities. Progress has also been made in social conflict prevention mechanisms, although the creation and implementation of a national prevention system is still pending. – page 50
Strategic guideline No. 2: Design of public protection policies to prevent human rights violations in the business environment.
Objective No. 3: Review, design, and adoption of national plans and programs to guarantee human rights in the framework of business activities.
38.
Action: Execute training actions aimed at GORES officials on the guidelines of the procedure for the formalization of individual and collective land rights.
Background: The process of formalizing individual and collective land rights needs to be strengthened. To this end, it is necessary that MIDAGRI, through DIGESPACR, implement training actions aimed at GORES officials on the guidelines of
the formalization procedure under the approach of individual and collective human rights over land.
Indicator: GORES officials trained in the guidelines of the procedure for the formalization of individual and collective land rights. – page 82
43.
Action: Promote the reduction of the land titling gap of rural properties, and of peasant and native communities at the level of the GORES.
Background: The execution of the procedures for the Titling of rural properties, peasant communities, and native communities is the exclusive competence of the GORES and the steering role is exercised by the MIDAGRI through the General Directorate of Agrarian Property and Rural Cadastre (DIGESPACR), it, it is required to strengthen the mechanisms to continue promoting the process of formalization of individual and collective land rights, according to its competence.
Indicator: Number of rural property titles registered, promoted by MIDAGRI. – page 84
45.
Action: Expressly incorporate the GP-RBC approach in actions related to climate change, biological diversity, and environmental land use planning in the next National Environmental Action Plan and the National Environmental Policy.
Background: The issues of climate change, biological diversity, and environmental land-use planning should be expressly associated with the issue of business and human rights. In this way, related public policy measures would encourage companies to take into account the issues arising from these issues in their due diligence processes throughout the supply chain and address negative environmental risks and impacts. Although climate change, biodiversity, and environmental land use planning are topics addressed in the National Environmental Action Plan 2011-2021 and the National Environmental Policy, it would be appropriate to incorporate the GP-RBC approach in the next public policy of this nature.
Indicator: National Environmental Action Plan, including or expressly contemplating the GP-RBC approach in actions related to climate change, biological diversity, and environmental land use planning. – page 85
IV. The corporate responsibility to respect human rights
C. Actions planned
Advocate for disclosure of non-financial information (pages 14-15)
‘In addition to studying the feasibility of expanding the range of businesses subject to a compulsory requirement to prepare CSR reports, the Taiwan government will also advocate for disclosure by businesses of non-financial information (related issues will include important environmental, social, and governance (ESG) topics — such as the […] forced evictions, indigenous land rights, […] — all of which are matters of concern to stakeholders). The goal of such a policy would be to ensure that businesses understand that the disclosure of non-financial information can make up for the shortcomings of financial information, thus enabling businesses to effectively identify and manage risks. This would facilitate the formulation of better business policies, and contribute to the achievement of forward-looking objectives, thus enabling the adoption of sustainable business practices.’
This issue is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, The State duty to protect, UNGP3, Actions planned (pages 42-43).
3. The core content of the National Action Plan on Business and Human Rights
3.2 Action plan for community, land, natural resources and the environment
3.2.1 Overview of the situation
The government has maintained an equilibrium in looking after its people to be able to have land and access natural resources fairly by establishing the National Land Policy Committee (NTC) in 2014 with the Prime Minister acting as the chairperson of the committee. The committee consists of executives from government agencies related to forestry, land, natural resources and the environment with the objectives to (1) Reduce social inequality and create opportunities to access to government services; (2) Maintain natural resources security by creating a balance between conservation and sustainable use, accelerate the process of land protection and reform, and conserve forest and wildlife; (3) Solve long-term problems of landlessness for farmers and encroachment on reserved forest by distributing ownership rights to people in the non-reserved area and issue measures to prevent the change of hands of land rights to non-farmers; (4) Organize land management systems such as establishing clear boundaries and speed up the process of the proof of rights; (5) Modernize the law and effectively and fairly enforce it; (6) Establish a land ownership registration database; (7) Expedite land allocation for the underprivileged who do not have land ownership; and (8) Certify the joint rights of the community to manage the land.
Land management for the community is a government action according to the important policy under the National Land Policy Committee by organizing land to the community in the form of collective plots. The land will come with no ownership but groups or communities are allowed to use land in cooperative or other suitable forms in accordance with the criteria and conditions specified by the National Land Policy Committee. The government agencies authorized by law, based on types of land, are eligible to set regulations, rules, obligations, and conditions under the approval of the National Land Policy Committee, according to the conceptual framework of the Sufficient Economy Philosophy and the community co-existing with forests. The benefits that people receive are to use or live on government land legally while occupations and marketing are systematically promoted and developed. This is to allow people to be secure, earn more income and live a better life, and it also helps prevent and solve the problems of land encroachment and land trading.
The government amended the Agricultural Land Lease Act B.E. 2524 (1981) to be the Land Lease for Agriculture Act (No. 2) B.E. 2559 (2016), which came into effect on 30 2559 (2016, to be more flexible. The tenant and the lessor are agreed appropriately with the government as a central mechanism supervising for a fair deal. The amendment of this law does not apply to tenants who are legal entities. The lease period and the rental fee are set in order to be fair to both the tenants and the landlord and prohibiting foreigners from renting land for agricultural purposes, in order to protect the rights in agricultural areas of Thailand to Thai national tenants only. …
For the problem of land encroachment of reserved forest of villagers in the area, at present, the government has allowed the community to participate in negotiations to find a solution together instead of forcing them to move out. The forestry officers and the villagers in the area will jointly define the boundary for the living areas and agree not to encroach into the restricted area, at the same time, villagers must help to monitor the encroachment and conserve the fertile forest areas, resulting in the decrease of deforestation and a considerable shifting of cultivation fields.
3.2.3 Action Plan (2019–2022)
Pillar 1: State duties in protecting (Protect)
No.
Issues
Activities
Responsible agencies
Time-frame (2019–2022)
Indicators (wide frame)
Compliance with National Strategy/ SDGs/UNGPs
1.
Developing and improving laws, regulations, policies and related measures
Review, amend, revise and propose laws, regulations and measures regarding land management, water resources and climate that are affected by business operations
– Ministry of Agriculture
– Ministry of Natural Resources and Environment
Ministry of Industry
2019–2022
Amount of laws, regulations, and measures relating to land management, water resources and climate that are affected by business operations that have been reviewed, revised, and regulated
– National Strategy for Eco-Friendly Development and Growth
– SDG 6, 13, 14 and 15
– UNGPs Articles 1, 3, 5 and 7
Revise the laws that cause monopolies in agriculture
– Ministry of Agriculture
2019–2022
Number of laws reviewed and propose amendments to prevent or reduce monopolies in the agricultural sector
– National Strategy for National Competitiveness Enhancement
– SDG 2
– UNGPs Articles 1, 3, 5 and 7
2.
Public participation
Organize discussions and public hearing to receive people’s opinions, including from related ethnic groups in the area. The public and communities should get access to complete information and participate in decision- making processes easily, as well as giving comments on the evaluation of the effect on the environment, land expropriation considerations, land management and forest conservation of the government, etc. before undertaking any project, including large-scale projects relating to energy management, power plants, petroleum, and drilling for the exploration of natural resources, in order to encourage people and communities to have a role in determining project operation areas, considering the way of life and culture.
– Office of the National Economic and Social Development Council
– Ministry of Agriculture
– Ministry of Natural Resources and Environment
– Ministry of Energy
– Ministry of Interior
– Ministry of Industry
2019–2022
Number of activities and projects organized to listen to the opinions of the people relating to operations that affect the public
– National Strategy for Eco-Friendly Development and Growth
– SDG 7, 11, 13, 14 and 15
– UNGPs Articles 1, 3, 4, 5, 7 and 8
4.
Special Economic Zones
Consider appropriate measures for land expropriation, including measures for consultation and compensation for those affected by fair expropriation
– Ministry of Transport
– Ministry of Natural Resources and Environment
– Office of the National Economic and Social Council
– Ministry of Industry
2019–2022
Appropriate measures for land expropriation along with fair compensation
– National Strategy for Eco-Friendly Development and Growth
– National Strategy for Public Sector Rebalancing and Development
– SDG 11, 13, 14, 15 and 16
– UNGPs Articles 1, 3, 4, 5, 7, 8, 10 and 31
8.
Development of government operations
Carry out an investigation and prove the rights of ownership and land use and issuing documents certifying legal rights
– – Ministry of Interior
2019–2022
Investigated and proved the rights of ownership and land use and legally issuing documents
certifying legal rights
– National Strategy for Public Sector Rebalancing and Development
– SDG 11 and 16
– UNGPs Articles 1, 3, 4, 5, 7, 8 and 10
Consider determining measures to certify rural development and land policies with gender- based dimensions in mind. A person should not be forced to be evicted, if there is a need to act, there should be a Free Prior Informed Consent form and the evicted person must also be compensated
– Ministry of Agriculture and Cooperatives
– Ministry of Natural Resources and Environment
– Ministry of Interior
2019–2022
– Measure to certify rural development and land policies that considered gender dimensions
Compensation paid to the evicted person
– National Strategy for Public Sector Rebalancing and Development
– SDG 5, 10 and 11
– UNGPs Articles 1, 3, 4, 5 and 7
9.
Business operations
Consider creating a mechanism to monitor businesses’ actions that violate land rights, natural resources and the environment
– Ministry of Natural Resources and Environment
– Ministry of Industry
– Ministry of Interior
2019–2022
– A mechanism established to monitor the actions of businesses that violate land rights, natural resources and the environment
– National Strategy for Public Sector Rebalancing and Development
– SDG 11, 13, 14 and 15
– UNGPs Articles 1, 2, 3, 4, 5, 7, 8 and 10
Pillar 2: Responsibilities of the business sector in respecting of human rights
2.1 Compliance with laws, standards and principles of human rights relating to the environment, natural resources, community and land
State enterprises and the business sector must review the organization’s rules and regulations and improve them to comply with relevant laws, standards and principles of human rights related to the environment, natural resources, community and land, especially the UNGPs, to prevent human rights violations.
State enterprises and the business sector must promote and monitor their subsidiaries, including their supply chain in respect to relevant laws, standards and human rights principles related to the environment, natural resources, community and land.
State enterprises and the business sector must cooperate with the government and international organizations in the event of monitoring and review compliance with laws, standards and principles of human rights related to the environment, natural resources, community and land.
The state enterprises should have appropriate measures and remedies provided in case of land expropriation from people, including coordinating with relevant government agencies to inform the public in advance.
Pillar 3: Duties of the state and the business sector to provide remedy (Remedy)
No.
Issues
Activities
Responsible agencies
Time-frame (2019–2022)
Indicators (wide frame)
Compliance with National Strategy/ SDGs/UNGPs
3.
Prosecution
Increasing efficiency in civil and criminal proceedings in cases related to the environment, natural resources and land rights
– Office of the Attorney General
2019–2022
Relevant law enforcement officer strictly proceeded with civil and criminal cases related to environmental, natural resources and land rights
– National Strategy for Public Sector Rebalancing and Development
– SDG 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
5.
Remedies
Develop systematic measures to effectively remedy the affected persons from managing natural resources or conducting business that violates land rights, natural resources and the environment, covering physical and mental damage and in line with the needs of affected people and communities from business/government projects
– Ministry of Natural Resources and the Environment
– Ministry of the Interior
– Ministry of Justice
– Ministry of Industry
2019–2022
Government sectors, state enterprises, and businesses have measures to remedy the affected persons from managing natural resources or conducting business that violates land rights, natural resources and the environment
– National Strategy for Eco-Friendly Development and Growth
– SDG 11 and 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
Establish a systematically plan for land restoration, natural resources and the environment in places affected by business operations
– Ministry of Natural Resources and Environment
– Ministry of Interior
2019–2022
Government, state enterprises and businesses with systematically plans for land restoration, natural resources and the environment in places affected by business
– National Strategy for Eco-Friendly Development and Growth
Uganda’s natural resource base is one of the richest and most diverse in Africa, resulting in the country’s economy relying heavily on these resources for provision of goods and services. The NRM manifesto considers land, which includes other natural resources like minerals, water and forests, as a key factor of production, particularly for Ugandans most of whom are still in agrarian economy. As part of efforts to ensure effective management of Uganda’s environment and natural resources, several policies and institutions have been put in place including; The Constitution, National Land Policy 2013, the National Land use policy 2007 and The Land Act (amended) 2010.
Despite the numerous achievements in land and natural resources management and administration, there still exists some challenges relating to protection of land rights in business operations. There is high incidences of small-scale and mass forced evictions orchestrated by businesses in both rural and urban areas. Illegal eviction is the consequence of lack of security of tenure and it amounts to a human rights viola on if conducted forcefully in disregard to set human rights standards.
High demand for land for large scale investments has resulted into increasing land evictions. For instance in March 2018, two private companies in Kiryandongo and Kitwanga sub counties rendered more than 5,000 families homeless after forceful eviction. Relatedly evictions by Hoima Sugar Works which resulted to displacement of many families in Kijayo Village, Kikube district relating and the increasing urban land illegal evictions which have resulted into destruction of several buildings, leaving families homeless and dependent on government support.
It was also established that those acquiring land for investments rarely undertake Social Impact Assessment (SIA) to determine the implications of land acquisition on the affected community and people. Undertaking a SIA minimizes the risks involved and prevents undue displacement, and ensures adequate rehabilitation, compensation and resettlement. It also guides the land acquiring agency to plan in a formal manner, thus saving costs, therefore reducing the risks involved in business activities.
During consultations, it was established that there is inadequate community engagement in land acquisition processes. This has resulted into increased cases of land conflicts including destruction of the established investments and violations of human rights.
CHAPTER FOUR: STRATEGIES AND INTERVENTIONSSTRATEGIES
OBJECTIVE 2: To promote human rights compliance and accountability by business actors
4.2.2 Promoting compliance to human rights observance
(…)
ix. Promote gender-sensitive and inclusive land use planning by investors.
OBJECTIVE 3: To promote meaningful and effective participation and respect for consent by relevant stakeholders in business operations.
4.3.1 Promoting FPIC for communities in all business operations
(…)
ii. Develop and enforce guidelines and policies regarding land acquisition, compensation and resettlement of communities affected by business operations, prioritizing the needs of the most vulnerable, such as women, persons with disabilities and persons living with HIV/AIDS.
CHAPTER FIVE: INSTITUTIONAL FRAMEWORK
(…)
5.4 Business entities
(…)
ii. Ensure free prior and informed consent in acquisition of land and other properties for business operations.
5.10 UWA, UNRA, NEMA, AND NFA
ii. Ensure equal and equitable sharing of benefits among communities in conservation areas.
iii. Ensure equity in settlement and resettlement of the displaced communities particularly the vulnerable groups.
iv. Ensure that businesses under take ESIA prior to commencement of businesses operations and conduct annual audits.
The strategic implementation framwork in the 1.0 Appendices includes:
Objective 3.0 (Appendices) Improvement in the business entities’ duty to ensure Free Prior and Informed Consent in investment and other business undertakings
Budgeted outputs in Annex I include:
Review and enact laws guaranteeing FPIC (Objective 3.0)
Developing guidelines and policies regarding land acquisition, compensation and resettlement of the affected communities (Objective 3.0)
(viii) Continue to work through our embassies and high commissions to support human rights defenders working on issues related to business and human rights in line with EU Guidelines on human rights defenders.
Case Study- Support for Land Tenure and Other Property Rights [page 13]
The UK Government is committed to supporting the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (Land Guidelines, VGGT) including through commitments to accelerate VGGT implementation during its G8 Presidency in 2013.
The UK supports the VGGT:
Through its funding to the Food and Agriculture Organisation in a three-year programme for £4.9 million to raise awareness, improve tenure governance, and support global reporting on progress with VGGT implementation;
Through its leadership in the 2013 G7 commitment to implement the VGGT through country partnerships with interested governments. These partnerships aim to accelerate and target support to countries’ existing land governance programmes in conjunction with businesses, in particular farmers, and civil society;
The global donor working group on land chaired by the UK (DFID) in its inaugural year has published a global land programme database and map. The database includes an initial 589 programmes in 127 countries with a combined worth of US$4.9 billion. All programmes are mapped against relevant sections of the human rights based VGGT;
Jointly with US, Germany, France, the AU Land Policy Initiative and FAO, the UK has developed a land investment due diligence framework based on the VGGT and other international standards, to guide private sector investments under the New Alliance for Food Security and Nutrition.
In 2015, under the German Presidency, the UK joined a new G7 commitment to align all its Overseas Development Assistance-supported investments with the VGGT. This is being taken forward over the coming years.
DFID is increasing its work on land, bilaterally and at the global level (for an overview of what we do to drive responsible land investments by the private sector, see our 2nd Land Policy Bulletin.
4. Access to remedy for human rights abuses resulting from business activity
Government commitments
Case study- Supporting human rights defenders in Colombia, Mexico and Brazil [page 22]
The UK supported International Service for Human Rights to deliver an intensive training and advocacy programme for human rights defenders working on issues relating to business and human rights in Colombia, Mexico and Brazil. ISHR also created a toolkit to equip human rights defenders to engage with and influence business and supported an advocacy mission to the Inter-American Commission on Human Rights for the purpose of briefing diplomats and decision-makers on the situation of human rights defenders working on issues of business and human rights in Brazil, Colombia and Mexico and obtaining recommendations in that regard.
