Not Only ‘Context’: Why Transitional Justice Programs Can No Longer IgnoreViolations of Economic and Social Rights

Transitional justice programs traditionally focused on breaches of civil and political rights and violations of bodily integrity, largely ignoring violations of economic and social rights (ESRs) and relegating socioeconomic issues to the category of ‘background’ or context. This approach is becoming increasingly untenable given that ESRs articulate binding and increasingly justiciable legal obligations. Considering past ESR violations can also provide crucial insight into the causes of past conflict, and addressing socioeconomic grievances can help to reduce the chances of future rights violations or civil unrest. This Article sets out when transitional justice ought concern itself with breaches of ESRs using the ‘respect, protect, fulfill’ framework of state obligations. Drawing on past examples, the Article argues that failures to respect and protect ESRs are usually discrete enough to be included in the mandates of truth commissions, reparations schemes, and, in some cases, criminal prosecutions. Decentralization programs and the vetting of corrupt economic actors can also effectively address past ESR violations and lead to socioeconomic improvements. Addressing state failures to fulfill ESRs is a more complicated question, although there are occasions where such violations should be included in transitional justice mandates. Ultimately, transitional justice can no longer ignore that ESRs articulate non-negotiable and clearly defined standards, which often hold the key to stable and sustainable political transitions

Innovative Financing Solutions for Community Support in the Context of Land Investments

Communities affected by agricultural, forestry, and other resource investments urgently need increased funding for legal and technical support. Without support, communities risk losing access to critical land and resources, suffering human rights violations, or missing opportunities to benefit from investments. A lack of community support can also lead to conflict and challenges that are damaging for companies and host governments. Donors and support providers have found ways to finance support for communities, but such efforts can only extend so far. Promising new opportunities exist for filling the financing gap, yet they will require sustained efforts by a range of actors. This report presents a call to action to help communities secure the support they so crucially need. The report explores options for tapping new funding sources for community support. These include: Government marshaling of funding from companies and others, through taxes, fees, and penalties Basket funds, operated by independent, trusted entities and funded by contributions from multiple actors Market-based impact investments and social impact bonds Direct company funding Third party funding Other solutions for increasing funding or reducing costs, including crowdfunding, generating profits from social enterprises, affordable user fees or in-kind services, contingency and uplift fees, and court-ordered fee shifting. The report also presents overarching considerations for developing a new financing initiative. These include: the initiative’s likely cost, efficiency and financial sustainability, political complexity and obstacles, political economy implications, the importance of strong governance mechanisms, and the logistics required to link funding, communities and support providers

Submission to Bonsucro re Production Standard v5 (2019-21)

In July 2020, CCSI made a formal submission to Bonsucro, an international multi-stakeholder initiative and certification scheme concerned with promoting sustainable sugar cane production. The submission formed part of consultations for Bonsucro’s draft Production Standard version 5. CCSI’s submission focused on challenges associated with implementing, and auditing for compliance with, three aspects of Bonsucro’s draft standard, namely: Obtaining the free, prior and informed consent (FPIC) of Indigenous and traditional communities when establishing or expanding sugar production operations Implementing transparent and participatory processes to assess, monitor, and evaluate the environmental and social impacts of new and existing projects; and Establishing accessible dispute resolution and grievance mechanisms that allow communities to raise and resolve problems. The submission proposed a concrete solution to complement Bonsucro operators’ efforts to more effectively meet that Standard in practice: a Basket Fund for Responsible Investment. A Basket Fund for Responsible Investment refers to an independently administered fund that receives financial contributions from multiple sources and then makes grants to pay for technical support – from civil society organizations, paralegals, organizers, non-legal experts, and lawyers, among others – for investment-affected communities. Financial contributors would include Bonsucro operators whose revenues exceed a certain threshold, potentially alongside such operators’ financiers, investors, large-scale suppliers, and customers, among others. By diversifying its sources of funding, a Basket Fund can achieve greater independence of community support, minimizing the risk of actual or perceived undue influence over the community or its support providers. The submission also noted that facilitating affected communities’ access to technical support through a Basket Fund would also benefit private sector organizations, given that a lack of community support increases the risk of grievances and conflict, which can result in material costs for companies and their investors

Bridging the Information Gap: How Access to Land Contracts Can Serve Community Rights

Land contracts (also known as investor-state contracts, or concession agreements) show what commitments a forestry, farming or renewable energy company has made and what the government has said the company can do on the land. These promises define the positive and harmful effects the company’s project could have on community members’ livelihoods and human rights, and on the environment. Accessing land contracts is a crucial strategy for local organizations. This briefing note explains how local organizations can use land contracts and the Open Land Contracts repository (OpenLandContracts.org) to help communities to: Understand company and government obligations related to a company project Monitor whether those obligations are being fulfilled Hold companies and the government to account for bad contracts or for failing to deliver on commitments that are important to communities Organizations can also use OpenLandContracts.org to raise broader public awareness about government contracting practices, and to campaign for contract transparency. Here’s what representatives from local organizations have to say about land contract transparency and OpenLandContracts.org: Having open access to contracts has the potential to ‘level the playing field’ and address imbalances in knowledge. Knowledge is power! —Justine Sylvester, Village Focus International, Laos Sometimes people support concessions based on the assumption that they will benefit. However, once they understand the contract, they realize many of the benefits are uncertain. People learn how to ask better questions and demand a seat at the table. —Francis Colee, Green Advocates, Liberia We use OpenLandContracts.org to review land contracts across the African continent in order to assess provisions that governments have included in their contracts, and to provide guidance on the types of provisions governments in this region should and should not include. It is incredibly useful to have all the contract information in the same place. —Samuel Nguiffo, Centre Pour l’Environnement et le Développement, Cameroo

Mechanisms for Consultation and Free, Prior and Informed Consent in the Negotiation of Investment Contracts

Investor-state contracts are regularly used in low-and middle-income countries to grant concessions for land-based investments, such as agricultural or forestry projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This has serious implications for requirements for meaningful consultation, and, where applicable, free, prior, and informed consent (FPIC), and is particularly important in situations in which investor-state contracts grant the investor rights to lands or resources over which the community has legitimate claims. The paper explores how consultation and FPIC processes can be integrated into investor-state contract negotiations, taking into account the practicalities of contract negotiations, to better safeguard the land rights and human rights of members of project-affected communities. Based on a review of relevant international law standards and guidance documents, as well as a close analysis of typical investor-state negotiations and of consultation and consent processes in other contexts, the paper provides various options that may be appropriate, depending on the local context and the community’s resources and decision-making structures

Legal Primer: Respecting the Human Rights of Communities in Wind and Solar Project Deployment

As a companion to the Business Guide, the Legal Risk Primer is geared towards general counsels and corporate legal teams, as well as internal and external stakeholders. It provides an overview of the wide range of potential legal risks for wind and solar energy companies associated with community-related adverse human rights impacts. The legal risks outlined arise from home and host government laws, community litigators, financiers, and power purchase agreements. Together, these two resources support wind and solar energy companies – as well as external stakeholders seeking to influence companies, including investors, civil society organizations, and project-affected communities – in driving a just transition to renewable energy that is fast but fair. This resource was produced as part of CCSI’s ALIGN partnership with Namati and the International Institute for Environment & Development, funded by the UK Foreign, Commonwealth & Development Office. Learn more about the ALIGN partnership here

Governing Land Investments: Do Governments Have Legal Support Gaps?

In the wave of efforts to encourage and support more “responsible” land investments, one aspect has been largely overlooked: are governments equipped with the legal and technical support needed to effectively negotiate and conclude investment contracts that lead to responsible outcomes? CCSI researched how host governments access legal support in the planning, negotiation, and monitoring of land investments, with a view to better understanding where legal support gaps for governments exist, and how these can be addressed by governments themselves, as well as by donors, support providers and investors. By scrutinizing “legal support gaps,” CCSI sought to identify possible weak links in global and national efforts to achieve more responsible land investments, as well as opportunities to encourage better practice. For example, legal support holds the potential – albeit not yet regularly realized – to be an entry point for incorporating international best practice and guidelines into negotiations and at other stages of the investment. The research also took stock of how governments are negotiating and concluding land investments in practice, to determine where additional legal support could potentially improve outcomes for governments. This work is part of a series of projects and activities, supported by UKaid from the Department for International Development, looking at legal support gaps in the context of land investments

Emerging Practices in Community Development Agreements

A Community Development Agreement or CDA can be a vital mechanism for ensuring that local communities benefit from large-scale investment projects, such as mines or forestry concessions. In formalizing agreements between an investor and a project-affected community, CDAs set out how the benefits of an investment project will be shared with local communities. In some countries CDAs are required by domestic legislation; in others, they are entered into voluntarily. The most effective CDAs are also adapted to the local context, meaning that no single model agreement or process will be appropriate in every situation. Nonetheless, leading practices are emerging which can be required by governments or voluntarily adopted by companies and communities. This briefing note reviews existing research, as well as available agreements from the extractive sector in Australia, Canada, Laos, Papua New Guinea, Ghana and Greenland, to highlight these leading practices

Transparency of Land-based Investments: Cameroon Country Snapshot

Despite a recent transparency law and participation in transparency initiatives, Cameroon’s investment environment remains plagued by poor transparency. In a new report focusing on agribusiness projects in Cameroon, CCSI and the Centre pour l’Environnement et le Développement (CED) find that: Communities continue to be excluded from decision-making around investments. The government pursues a top-down approach to concession allocation and remains reluctant to recognize all legitimate tenure rights. The government faces threats to its legitimacy as the grievances of citizens and investors alike lead to the barring of roads by communities and investor withdrawals. CCSI and CED therefore call for: A new law concerning the governance of land and land-based investment in Cameroon, to be developed in close consultation and collaboration with communities, Indigenous groups, and other actors. The law should respond to the transparency needs of affected communities, enable increased funding for technical support to communities, and facilitate the recognition of all legitimate customary land rights, with specific attention to Indigenous communities and women and girls. A national moratorium on any new approvals for large-scale agribusiness and other land-based investment projects until Cameroon’s legal and policy landscape has been reformed. This research forms part of a broader portfolio of research conducted by CCSI on a demand-driven approach to land investment transparency, focusing on the transparency needs of project-affected communities and host governments. This project was funded with UK aid from the UK government; however, the views expressed do not necessarily reflect the UK government’s official policies

Amicus Brief on Rights to Information and Public Participation in Colombia

CCSI submitted an amicus brief to the Constitutional Court of Colombia concerning the Tutela hearing of Mansarovar Energy Colombia Ltd. v. Tribunal Administrativo del Meta (The Consulta Popular of Cumaral, Meta). The hearing concerned a challenge by Mansarovar Energy Colombia Limited of a municipal-wide referendum (the Consulta Popular) concerning whether or not the extraction of hydrocarbons should be permitted in the municipality of Cumaral. The municipality voted 97% against allowing the extraction of hydrocarbons. CCSI’s brief focused on the international human rights law dimensions of the case, given that Colombia’s Constitution renders the government’s international human rights law obligations binding under domestic law. In the brief, CCSI’s arguments included that: All people have international human rights to public participation and to information in the context of public decision-making regarding potential investment projects. Meaningful public participation and effective access to information are also necessary prerequisites for the exercise of many other human rights, including the rights to health, food, and water and sanitation. The Consulta Popular contributed to the realization of the rights to public participation and to information insofar as it encouraged information sharing about the likely impacts of hydrocarbon projects, and allowed for rights holders to influence decision-making, by articulating the overwhelming consensus among citizens that such projects should not be allowed. On October 11, 2018 media reported that the Court upheld the challenge to the referendum while also ordering congress to address the lack of a mechanism for community participation