Forum global sur la sécurité alimentaire et la nutrition (Forum FSN)

Dear participants,

Thank you very much for your comments,

For those who would still like to provide feedback on the ALIC Zero Draft, you may do so directly at UNIDROIT’s website until 31 October 2019:

In ENGLISH: (https://www.unidroit.org/work-in-progress/agricultural-land-investment/online-consultation);

In FRENCH: (https://www.unidroit.org/fr/current-studies-fr/contrats-en-terres-agricoles/consultation-en-ligne).

The newly amended Land Administration Law of the People's Republic of China was issued on 26th August 2019 and will become effective from 1st January 2020. It shares some common ground with the ALIC. It prioritizes biodiversity conservation and sustainable development (Art. 18). The acquisition of land is limited to clearly defined purposes and procedures (Art. 45-7). The amendment strengthens the protection of tenure right holders (Art. 48) and simplifies the procedure of the transaction of land tenure rights to non-local entities and individuals (Art. 13). 

Considering the international audience of the ALIC, it would be beneficial to have an appendix at the end showing the available official online sources of relevant countries’ national legislation.

I'd also raise a point with regards to FPIC, and its potential applicability beyond indigenous communities. Though it was originally formulated with regards to indigenous peoples, FPIC is nowadays considered an applicable principle to all types of communities potentially affected by land transactions. In fact, FPIC is nowadays considered an expression of the realization of different human rights (adequate housing, culture, etc.)

In addition, the VGGT Technical Guide on FPIC emphasizes that, as an expression of the right to self determination, “FPIC can be fairly interpreted as applying to all self-identified peoples who maintain customary relationships with their lands and natural resources, implying it is enjoyed widely in rural Africa and Asia” (for instance).

In this regard, shold the guide make reference for consultations with other non IP communities tofollow the FPIC standards and allow a “right to say no”?

There are few things that can be improved in Chapter 1- The Legal Framework. First, after reading this chapter, the structure and classification of each part is not that clear and sometime overlap. It would be helpful if the drafting team can reconsider a more logical structure of this chapter. Second, in 1.5 (page 15), it mentions ‘customary land rights’ and ‘customary rights’. Would it possible to provide footnotes or examples on this? In 1.8 – Domestic legal system in general, it mainly discusses and/or mentions constitution or constitutional system. While, in some countries, the institution does not specifically mentions contract regulation or provide information on how to regulate contract with public factors. This part can provide few more general information concerning the domestic legal system. In part A-Domestic Sources 1.10, the guide use ‘legal rules’ to include all mandatory domestic legal sources, but I have some reservations about it. The case law may not be described as ‘rules’. The guide puts the 1.10, 1.11, and 1.12 into parallel parts, while it seems that the three parts might not be the same level. Or it would be nice if considering putting the ‘customary rules’ and ‘recognition of customary rules’ in one part with sub-titles. There are also overlaps in part B- International sources and Part II. Relevant Areas of Law, especially when mentioning international instruments concerning human rights. In 1.21, the guide mentions applicable tax and finance regime, but in the bullet points, it only emphasises fiscal regime and accounting standards.

Some private companies are willing to invest in sustainable agricultural activities to show their leadership in addressing global environmental or social challenges. However, these investing companies themselves may not be specialized in agricultural projects. Instead of investing directly, they may seek intermediaries. Such intermediaries may have various forms, such as development banks and private companies. They usually have their own teams of experts and codes of conduct. Many explanations of basic legal knowledge may not be helpful for them. For instance, ‘this is because domestic courts can exercise compulsory personal and subject matter jurisdiction over persons and disputes located in that State’s territory’(p.123). Hence, after defining a clear scope of the audience in the revision, the draft may consider rearranging the structure of texts so that legal experts can locate the core issues easier.

Regarding the certification schemes for sustainable agricultural products and supply chains, the draft may also consider adding more clarifications and details. Several separate places mentioned relevant concepts very briefly: para. 2.26. ‘certification providers’ (p. 30), para. 2.56 ‘certification schemes’ (p. 36), para. 3.112 ‘private standards and multi-stakeholder certification schemes’ (p. 74), para. 3.122 ‘private certification schemes’ (p. 77), para. 3.150, ‘certification bodies, which may be public or private entities’ (p. 82). It may be stronger to provide a clear definition at the beginning and explain a bit more about how these certification schemes operate and specific rights and responsibilities that need to be agreed on in the land investment contracts.

Another idea that may be interesting for the parties is the possibility to combine multilateral funding for sustainable agricultural activities. There are multilateral funds that support biodiversity conservation, climate change mitigation and adaption, and capacity building, such as the Global Environmental Fund, Green Climate Fund, and Adaptation Fund. If the planned agriculture activities are relevant to any of those themes above, the parties may consider applying for additional funding and repay with the positive environmental and social results that would be generated regardless. In this context, the parties may need to arrange in their investment contract, which area is for such funding and their relevant rights and responsibilities.

I have included some text amendment  The underlines are not showing so I have attached a word document to easily identify them. 

CHAPTER 1 - THE LEGAL FRAMEWORK

1. 1. Overview. An appropriate and effective legal framework can foster responsible agricultural investment and incorporate necessary safeguards to protect legitimate tenure right holders, human rights particularly the right to food, livelihoods, food security and the environment. The legal framework applicable to an agricultural investment is made up of the law of the State in which the land is located (including customary law), international law (e.g. treaties, custom and principles of law), and the agricultural land investment contract, of which the State’s law is the most important component.

1. 1. Interplay between domestic law and the contract. At its best, domestic law creates a level playing field for all comparable investments, reflects policy choices made through democratic processes, and establishes transparent and public terms. In those situations, an agricultural land investment contract might only need to address a narrower set of issues (e.g. location of the land, rental rates, and community development aspects). In other situations, however, the law might not address critical issues, or there might be gaps in its implementation. In these instances, an agricultural land investment contract could include provisions and covenants addressing, to the extent possible, such issues or gaps needed to protect right holders. Under either scenario, the agricultural land investment contract plays a significant role in the legal framework applicable to an agricultural investment.

1. 1. Freedom of contract. As a general matter, parties are free to enter into a contract and to determine its content how they see fit, based on the freedom of contract.1 In transactions involving governments and local communities in an area as critical to the realization of the right to food and food security, human rights and environmental protection as agricultural investment, however, that freedom is subject to various mandatory rules, which restrict the parties’ freedom of contract without jeopardizing customary tenure system and land rights.

1. 1. 1.4. Mandatory rules. The agricultural land investment contract must comply with mandatory rules whether of national, international or supranational origin. Mandatory rules of national origin are those enacted by States autonomously which cannot be varied by express agreements of the parties (e.g. legislation or judicial decisions), while mandatory rules of international or supranational origin are those derived from international conventions (e.g. human rights conventions), custom and principles of law or adopted by supranational organisations (e.g. EU competition law). The Guide’s notion of such rules is meant to be broad. In some domestic systems, for example, mandatory rules may also derive from general principles of public policy (e.g. prohibition of corruption, protection of human dignity, prohibition of discrimination on the basis of gender, race or religion).2 If the parties’ contract fails to comply with those rules, it runs the risk of being unenforceable and overturned, thereby undermining the agricultural investment.

1.11. Customary and Religious rules. While legal professionals are likely familiar with the roles of legislation, regulations and judicial decisions in various legal systems, often there is not the same level of familiarity with customary and religious rules. Such rules may play a significant role in some legal systems, and they often derive from practices, traditions and religion, may be neither codified nor written, and may deal with matters such as personal status, family relationships, inheritance, governance and use of land and other natural resources, rights over livestock or seasonal rights to land for the grazing of livestock. Those latter rights may also be collective and pertain to the whole community. With respect to agricultural land investment contracts, customary rules and religious may deal with who is entitled to hold rights to land, the capacity of persons to enter into and execute an agreement on behalf of group right holders, the validity of agreements, issues of form and evidence, or performance and sanctions for non-performance. Such rules may be exclusionary and inconsistent with human rights and public policy, for example by prohibiting women from owning or inheriting land or from entering into contracts.

1.12. Recognition of customary and religious rules. Customary and religious rules are recognised in certain States, by the State’s constitution, statute or judicial decision. The applicability and scope of these rules, how they are recognised, and how possible conflicts between the various autonomous legal orders are to be solved, depend on the particular features of each State’s legal system. In other settings, customary rules and religious rules may be applied by courts as local customs or usages,6 and these two concepts are often conflated. Even when a particular practice or tradition does not legally amount to a custom, the parties to an agricultural land investment contract should carefully take them into account in their dealings, especially when the relationship has a strong social, cultural and personal dimension. In this regard, the parties should also keep in mind that there may be differences, for example, between how a State’s court interprets and applies a local community’s customary rules and how those communities interpret and apply them.

1.22. Human rights. Various human rights instruments establish civil, cultural, economic, environmental, political and social rights. States have a duty to respect, protect and fulfil such rights,16 and investors have a corresponding responsibility to respect human rights and to identify and  assess  the potential negative impact their investment would have on rights and establish precautionary  ,easure to avoid such negative impacts and also to remedy any negative impacts they have on such rights.17 There are various areas of human rights law that might be affected by agricultural investment including, inter alia:

• Food security and the right to food: Ensuring food security for all and the progressive realisation of the right to adequate food are central tenets of the VGGT and the CFS-RAI Principles.18 In accordance with the VGGT and CFS-RAI Principles, a host State’s legal framework may contain laws or regulations that seek to ensure food security, for example, by temporarily banning the export of food if there is a threat to food in that State. Because an agricultural investment could pose as an obstacle to pose as an emerging obstacle to the right food thus negatively affect food security. and a Any perceived threat to food security could provoke strong local opposition to a possible agricultural investment, it is essential that a risk assessment be conducted in this regard (see Chapter 2.IV.B.2).

In the part of IV. Protection of Investment and Regulatory Autonomy, there are few things that need to be improved or clarified. First, in 3.126, the guide mentions ‘domestic investment codes’, but I would suggest not to use the term ‘codes’ but ‘law’ or ‘rules’ or ‘regulation’ since in many countries they do not have investment “codes” but investment law, or regulation, or provisions in relation to investment in other codes or law. The term of ‘codes’ is not frequently used in investment law field. In 3.132, when mentioning ‘indirect expropriation or regulatory taking’ or ‘tantamount’, other similar alternatives or terms can be also mentioned for wide readers, e.g. ‘creeping’, or ‘de facto’ expropriation. In 3.134 (page 79), whether the examples of ‘discounted cash flow method, book value, replace value’ can be further explained or with footnotes provided. In 3.139 (page 80) and 3.140, it would be helpful if the term ‘economic equilibrium clauses’ or ‘stabilisation clauses’ can be explained since many other people may not be familiar with these technical terms. Actually, there are two basic types of stabilisation clause, i.e. ‘freezing clauses’ and ‘economic equilibrium clause’. The guide in this part may have to clarify the relation of these clauses to make readers clearly understand it. In addition, this part seems to provide an approach or an view to address or reflect the conflict between protection of investment and protection of the right to regulate and try to make a balance, however, the obligation (binding or non-binding) of investors has seldom been mentioned. It seems that the view of this part is mainly to provide measures or approaches that the government can take to balance this conflicting interest but not the measures or approaches that the government can take to protect its right to regulate, i.e. countermeasures. The guide mentioned CSR, responsible business conduct or similar expression but in this part these terms do not appear. Given that, for the readers, the obligation or soft responsibility of investors is not a key issue but this is also very important for the purpose of achieving sustainable investment.

The ALIC zero draft has mentioned many times that environmental issues are one of the important components of the bargain.[1] The draft provides four pathways to ensure positive environmental results, whereas some of them are slightly hidden in the texts. After explaining that there are national and international laws on relevant environmental issues, the draft mainly addresses these issues by suggesting a feasibility study for the investors to be aware of the environmental risks and environmental impact assessments (EIA) as required by the law.[2] The draft also suggests that ‘in response to these potential impacts, investors ought to prepare management programs that create operational procedures, practices, plans, and legal agreements ... These ought to include environmental and social action plans with measurable targets as well as for monitoring and review as well as for stakeholder...’[3] Lastly, the investor may be obliged to pay compensation for the misuse of the land as discussed in Chapter 5.[4]

These pathways are thoroughly listed in the text, whereas the draft should also make it more evident in the table of contents and make it more visible with subtitles. Then it would be easier for practitioners to locate where to look when the non-performance, transfer, and dispute are about environmental issues in Chapters 4, 5, and 6.

Also, it is doubtful whether international and national legal systems can provide a credible EIA to mitigate environmental risks, hence they may not be able to provide ‘assurances that environmental standards will be maintained’.[5] The EIA is sometimes not binding under international law. For instance, in the case of CDM agriculture activities, whether to conduct an EIA is subject to the decision of the designated national authority, and relevant international agencies do not conduct a substantial review.[6] The national/local authorities may have deficient standards or lack of the institutional and financial capacity to hold a credible EIA.[7]

It is a smart idea to ask investors to make environmental plans to prevent future risks. It has happened in international cases, that a project was terminated because the NGOs discovered significant adverse environmental impacts during the implementation. In the case concerning Gabcίkbvo-Nagymaros project, the International Court of Justice (ICJ) ruled the Hungarian government to continue the project, and both parties should apply newly developed norms of environmental law.[8] However, would the private investors be willing to bear such a responsibility (as suggested below, state maybe investors as well. But the discussion here focuses on the private investors)? For those who invest in sustainable agricultural production, are they institutionally and financially capacity to design and implement a mechanism that even international and national authorities could hardly achieve, and then what kind of mechanism it would be? If it is possible, the revision of the draft would be very beneficial for the investors to give more details on the design of such a mechanism (combining operational procedures, practices, plans, legal agreements, and action plans) to mitigate environmental risks.