While there is no explicit broad right to land under international human rights law, 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.
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.+ 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.
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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.”
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 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 on Land 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 Criteria to 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 a National 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.