 |
 |
*Karl P. Sauvant, PhD* *Resident Senior Fellow* *Columbia Center on Sustainable Investment* Columbia Law School - The Earth Institute, Columbia University 435 West 116th St., Rm. JGH 825, New York, NY 10027 | p: (212) 854 0689 | cell: (646) 724 5600 e: [log in to unmask] | w: www.ccsi.columbia.edu | t: @CCSI_Columbia <https://twitter.com/CCSI_Columbia> The Evolving International Investment Law and Policy Regime: Ways Forward (E15 Task Force policy options), "China's outward FDI and international investment law", "Policy options for promoting FDI in the LDCs", “The negotiations of the United Nations Code of Conduct on Transnational Corporations: Experience and lessons learned”, and *Improving the International Investment Law and Policy Regime: Options for the Future are* available at http://www.works.bepress.com/karl_sauvant/. View this email in your browser <http://us6.campaign-archive2.com/?u=ab15cc1d53&id=8bf252b530&e=dd153d6a25> 哥伦比亚大学国际直接投资展望中文版都可以在我们的网站查看： http://ccsi.columbia.edu/publications/columbia-fdi-perspectives. <http://columbia.us6.list-manage1.com/track/click?u=ab15cc1d53&id=388bab9dcd&e=dd153d6a25> *Columbia FDI Perspectives* Perspectives on topical foreign direct investment issues No. 169 March 14, 2016 Editor-in-Chief: Karl P. Sauvant ([log in to unmask]) Managing Editor: Maree Newson ([log in to unmask]) *Land investments and human rights: how home countries can do more* <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=0b2f19a78c&e=dd153d6a25> by Kaitlin Y. Cordes and Anna Bulman*** <#6115191946447473859__edn1> The past decade has witnessed heightened corporate interest in large-scale land-based agricultural and forestry investment by foreign investors. This commonly involves the transfer of use rights for large tracts of land from governments to investors. These investments can have positive effects for local communities, such as providing employment. They also, however, can have devastating impacts on human rights, including through forced displacement and loss of livelihoods necessary to secure rights to food and housing. Host countries, through their actions or inactions, play a primary role in rights violations. Government actors may forcibly evict land users to make way for concessions, provide abusive security forces to protect concessions, divert important water supplies, or otherwise enable investors to undertake projects that negatively affect human rights. At other times, host countries are simply unable to protect human rights in the face of such investments, having insufficient resources to monitor and enforce laws or investment agreements. International law is currently an imperfect tool for addressing such rights abuses. Two separate areas of law address concerns. Investors seek redress under international investment law, while individuals harmed by investments rely on mechanisms provided under international human rights law. Under these systems, the protections afforded to affected local persons are greatly inferior to the protections granted to investors.[1] <#6115191946447473859__edn2> Moreover, the relatively stronger enforcement mechanisms of international investment law may persuade a host government to prioritize its obligations under investment law over its obligations under human rights law. Developments in international human rights and investment law may eventually address these imbalances, e.g., new avenues for redress of rights violations, or improved investment treaties that better address rights impacts. Yet, a more equitable system remains a long way off. The current failure of host governments and international law to protect human rights in the context of land investments highlights the need to employ other mechanisms, such as home country measures.[2] <#6115191946447473859__edn3> Setting aside questions of whether home countries have legal obligations to address human rights impacts abroad,[3] <#6115191946447473859__edn4> home countries have good reasons to encourage more rights-supportive outward investment – such as upholding commitments under the Sustainable Development Goals – and have shown willingness to enact laws with extraterritorial reach.[4] <#6115191946447473859__edn5> To start, home countries can ensure that domestic policies, such as those promoting biofuels, do not inadvertently promote land deals with negative rights impacts. Governments have several options for addressing problematic policies: rescinding if the risks are too high, modifying to alleviate risks or introducing safeguards. In particular, safeguards might include requiring outward investors to undertake human rights impact assessments and denying related benefits when negative impacts are revealed. Home countries that support outward investors engaging in land deals can condition their financial or diplomatic support on compliance with human rights-related standards or processes. For example, under Canada’s outward investor corporate social responsibility policy,[5] <#6115191946447473859__edn6> extractive companies choosing not to participate in disputes referred to Canada’s National Contact Point for the OECD Guidelines face withdrawal of government advocacy support and potential implications for financial support. Finally, home countries can establish disclosure requirements for outward investment. Such requirements encourage investors to mitigate reputational risks by advancing more responsible operations and can be coupled with due diligence obligations. Examples from the extractive industry are the United States Dodd-Frank Act[6] <#6115191946447473859__edn7> and the European Union Accounting Directive,[7] <#6115191946447473859__edn8> which impose disclosure, assessment and reporting obligations. To encourage more responsible land investments, similar requirements could be created for companies investing in foreign agricultural and forestry projects. These measures provide avenues through which home countries can seek to influence outward investment in this area. Particularly when combined with redress mechanisms, such as entertaining tort claims against domiciled entities for abuses committed overseas, home countries can encourage more rights-consistent investments that benefit all stakeholders: home countries’ outward investors, host countries receiving the investment and the local communities affected by such investment. ------------------------------ * <#6115191946447473859__ednref1> Kaitlin Y. Cordes ( [log in to unmask]) is the head of the Land and Agriculture team at the Columbia Center on Sustainable Investment (CCSI); Anna Bulman ( [log in to unmask]) is an Australian lawyer and former legal intern at CCSI, now working as a David W. Leebron Human Rights Fellow at the Legal Resources Centre in South Africa. This* Perspective* is based on Kaitlin Y. Cordes and Anna Bulman, “Corporate agricultural investment and the right to food: addressing disparate protections and promoting rights-consistent outcomes,” *UCLA Journal of International Law & Foreign Affairs* (forthcoming). The authors are grateful to Gabriel Bottini, Lorenzo Cotula and Amnon Lehavi for their helpful feedback. *The views expressed by the authors of this Perspective do not necessarily reflect the opinions of Columbia University or its partners and supporters. Columbia FDI Perspectives (ISSN 2158-3579) is a peer-reviewed series.* [1] <#6115191946447473859__ednref2> *See,* Lorenzo Cotula, “Law at two speeds: legal frameworks regulating foreign investment in the global South”, *Columbia FDI Perspectives*, No. 73, June 29, 2012. [2] <#6115191946447473859__ednref3> Although some soft law instruments discuss the role of home countries (*see, e.g.,* Committee on World Food Security, *Principles for Responsible Investment in Agriculture and Food Systems*, CFS 2014/41/4 Rev. 1, paras 32-33), the importance of home country measures is not uniformly endorsed. For example, the recent New Alliance “Analytical Framework for Responsible Land-Based Agricultural Investments” notes the importance of host country action but fails to mention home countries (available at http://new-alliance.org/resource/analytical-framework-responsible-land-based-agricultural-investments <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=e4e9d8db04&e=dd153d6a25> ). [3] <#6115191946447473859__ednref4> Many legal scholars assert that governments have human rights obligations beyond their own borders. *See, e.g.*, The Maastricht Centre of Human Rights and the International Commission of Jurists, *Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights *(September 28, 2011), available at http://www.maastrichtuniversity.nl/web/Institutes/MaastrichtCentreForHumanRights/MaastrichtETOPrinciples.htm <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=3e00886f7f&e=dd153d6a25> . [4] <#6115191946447473859__ednref5> *See* Columbia Center on Sustainable Investment, *Home Country Measures (HCM) Taxonomy* (November 7, 2014) available at http://ccsi.columbia.edu/files/2014/01/CCSI-Taxonomy-_-Nov-10.pdf <http://columbia.us6.list-manage1.com/track/click?u=ab15cc1d53&id=ddee43a021&e=dd153d6a25> [5] <#6115191946447473859__ednref6> Canadian Ministry of International Trade, *Doing Business the Canadian Way: A Strategy to Advance Corporate Social Responsibility in Canada’s Extractive Sector Abroad*, (November 14, 2014), available at http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/csr-strat-rse.aspx?lang=eng <http://columbia.us6.list-manage1.com/track/click?u=ab15cc1d53&id=ab259fafbf&e=dd153d6a25> . [6] <#6115191946447473859__ednref7> US Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, sections 1504, 1502. [7] <#6115191946447473859__ednref8> Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013. *The material in this Perspective may be reprinted if accompanied by the following acknowledgment: “Kaitlin Y. Cordes and Anna Bulman, ‘Land investments and human rights: how home countries can do more,’ **Columbia FDI Perspectives, No. 169, March 14, 2016. Reprinted with permission from the Columbia Center on Sustainable Investment (www.ccsi.columbia.edu <http://columbia.us6.list-manage2.com/track/click?u=ab15cc1d53&id=121c53c435&e=dd153d6a25>).” A copy should kindly be sent to the Columbia Center on Sustainable Investment at [log in to unmask] <[log in to unmask]>. * For further information, including information regarding submission to the *Perspectives*, please contact: Columbia Center on Sustainable Investment, Maree Newson, [log in to unmask] *Most recent Columbia FDI Perspectives* <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=8733c9c33c&e=dd153d6a25> - No. 168, Karl Sauvant and Daniel Allman, “Can India emulate China in attracting and benefitting from FDI?” February 29, 2016. - No. 167, Nahom Ghebrihiwet, “Mining automation: threat or opportunity for FDI technology spillovers?” February 15, 2016. - No. 166, Eric Neumayer and Peter Nunnenkamp, “Democracies conclude more and stricter international investment agreements – but why?” February 1, 2016. *All previous FDI Perspectives are available at * *http://ccsi.columbia.edu/publications/columbia-fdi-perspectives/* <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=3143e50774&e=dd153d6a25> *. * *Other relevant CCSI news and announcements* - *On* *July 6-15**,* 2016, CCSI will hold its Executive Training on Sustainable Investments in Agriculture <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=e16eeb150a&e=dd153d6a25> at Columbia University in New York City. The program provides an interdisciplinary approach to addressing the challenges and opportunities of agricultural investments. The program is designed primarily for public sector officials and civil society representatives from low-and middle-income countries, to equip participants with the necessary knowledge and skills to address some of the key challenges posed by international investments in agriculture and to encourage a rich dialogue about best practices from around the globe.* For more information on the program, including application materials, please visit our website <http://columbia.us6.list-manage1.com/track/click?u=ab15cc1d53&id=ebdf868ed1&e=dd153d6a25>.* Applications will be accepted on a rolling basis until March 25, 2016. - *In March, 2016*, CCSI released several new publications related to land-based investments: * - Land Deal Dilemmas: Grievances, Human Rights, and Investor Protections <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=73ac150ff7&e=dd153d6a25>* This new report provides practical solutions for governments confronting community grievances arising from land-based investments, particularly in the context of complex and competing legal obligations. Accompanying this report <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=5e8098a7fa&e=dd153d6a25> is a related briefing note, *Land <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=18681bbf79&e=dd153d6a25>deals <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=6bf58062d4&e=dd153d6a25>* *and the law* <http://columbia.us6.list-manage2.com/track/click?u=ab15cc1d53&id=3ae15a2f00&e=dd153d6a25> , <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=99309da511&e=dd153d6a25> as well as a training module <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=bf701c005a&e=dd153d6a25>with a presentation, accompanying notes, and related exercise. These and other materials are available for download here <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=2da070fd6c&e=dd153d6a25> . * - Transparency in Land-Based Investment: Key Questions and Next Steps <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=b3abfc0ac0&e=dd153d6a25>* This briefing note, co-authored with the Open Contracting Partnership <http://columbia.us6.list-manage1.com/track/click?u=ab15cc1d53&id=20a48d1a8a&e=dd153d6a25>, examines the importance of contract disclosure and an inclusive contracting process. It also considers what such transparency entails, and how various stakeholders can work towards achieving it. Columbia Center on Sustainable Investment Columbia Law School - Earth Institute Columbia University *Copyright © 2016 Columbia Center on Sustainable Investment (CCSI), All rights reserved.* [log in to unmask] *Our mailing address is:* Columbia Center on Sustainable Investment (CCSI) Columbia Law School - Earth Institute, Columbia University 435 West 116th Street New York, NY 10027 Add us to your address book <http://columbia.us6.list-manage.com/vcard?u=ab15cc1d53&id=a437e0fd88> unsubscribe from this list <http://columbia.us6.list-manage.com/unsubscribe?u=ab15cc1d53&id=a437e0fd88&e=dd153d6a25&c=8bf252b530> update subscription preferences <http://columbia.us6.list-manage.com/profile?u=ab15cc1d53&id=a437e0fd88&e=dd153d6a25> [image: Email Marketing Powered by MailChimp] <http://www.mailchimp.com/monkey-rewards/?utm_source=freemium_newsletter&utm_medium=email&utm_campaign=monkey_rewards&aid=ab15cc1d53&afl=1> ____ AIB-L is brought to you by the Academy of International Business. For information: http://aib.msu.edu/community/aib-l.asp To post message: [log in to unmask] For assistance: [log in to unmask] AIB-L is a moderated list.