In this issue, we focus on the costs and benefits of international investment treaties; and how community by-laws can help secure customary land rights. We are also excited to include details of a vacancy for a new Senior Researcher in our team.
IIED legal tools newsletter
The Legal Tools newsletter is sent out every three months to keep you updated on Legal Tools for Citizen Empowerment, a collaborative initiative to strengthen local rights and voices in natural resources investments.
Chinese President Xi Jinping addresses the Forum on China-Africa Cooperation (FOCAC), held from 3 to 5 December 2015 in Sandton, Johannesburg. (Photo credit: GCIS/GovernmentZA, Creative Commons, via Flickr)

Spotlight: Considering the costs and benefits of international investment treaties

International agendas emphasise the role of private investment in achieving the Sustainable Development Goals, and it is within this context that IIED's Legal Tools Team is exploring the costs and benefits of international investment treaties. Under many investment treaties worldwide, states commit to agreed standards of investor treatment in the expectation that this will promote mutually beneficial investments. Based on interviews with Chinese companies investing in Africa's natural resource and infrastructure sectors, however, a new report by IIED and the Beijing-based Global Environmental Institute provides a cautionary tale as to whether such treaties do indeed promote investment, casting doubt on the benefits of investment treaties.

At the same time, it is increasingly clear that investment treaties are being used to challenge public action in a wide range of policy areas, which raises questions over the costs of the treaties. A newly published briefing, 'Rethinking investment treaties to advance human rights', shows that human rights issues have been at stake in many arbitrations worldwide. This briefing is intended to support parliamentary scrutiny of treaty making as part of a project with the Trade Justice Movement and Traidcraft.

More in-depth research shows how activating investment treaties can affect land rights, shifting the balance between competing land claims and ultimately contributing to a greater reconfiguration of property access and ownership. A Q&A with IIED principal researcher Lorenzo Cotula distils the highlights of this research. Also, a book review discusses academic research suggesting that, in signing investment treaties, many low and middle-income countries overestimated the benefits and underestimated the costs.

The rapidly evolving global political context creates new challenges and opportunities to rethink investment treaty policy. In the UK, the outcome of the EU referendum creates the prospect of new investment treaty negotiations conducted by the UK government – and the need to examine the costs and benefits of the treaties and reflect on their formulation. ‘Beyond trade deals: charting a post-Brexit course for UK investment treaties’, prepared in collaboration with the Columbia Center on Sustainable Investment, charts options for post-Brexit UK investment treaty policy.
 

Vacancy

The Legal Tools team now has an exciting opportunity for a French speaking Senior Researcher to develop and manage action-research programmes that will strengthen local rights and promote sustainable development in the governance of land and investment. To find out more and apply please visit the IIED website. Please help us share news of this vacancy by forwarding it to your networks. The closing date for applications is Monday, 6 February 2017.
 

Blogs

Using community by‑laws to protect indigenous and rural land rights

Using community by‑laws to protect indigenous and rural land rights

Indigenous peoples and rural communities who rely on customary tenure systems to access their lands face numerous threats, ranging from climate change to large-scale agricultural investments. An IIED webinar examined how community by-laws can help secure customary land rights to build community unity, improve local land governance, and strengthen claims to traditional lands. This blog reports on the webinar and includes links to the presentations and other material shared by participants.

Land cleared for palm oil in Riau Province, Indonesia. Only half of Riau's palm oil plantations have official permits (Photo: Wakx, Creative Commons via Flickr)

Law in the natural resource squeeze: 'land grabbing', investment treaties and human rights

This Q&A discusses highlights from IIED’s research on how activating international investment treaties can affect local land rights, including in the context of agribusiness investments.

Our work

Meeting of the Ogiek community of Sasimwani to review their draft by-laws (Photo: Jaron Vogelsang/Namati)

Webinar

In November, IIED organised a webinar examining how community by-laws can help secure customary land rights to build community unity, improve local land governance, and strengthen claims to traditional lands. Presenters included David Arach, who shared Namati's approach to Community Land Protection, focusing on the key stage of community by-laws drafting; and John Lengoisa from the Ogiek’s People Development Program, who discussed how the Ogiek community is applying the community by-laws process to build community unity, improve local land in governance, and bolster the Ogiek’s legal claim to their traditional lands.
 

Events attendance and travels

During the autumn, team members travelled to Senegal and Ghana to work with partners on initiating the second phase of the Gender, Land and Accountability project. The team also attended a number of engaging events in London including the UK Land Policy Forum on Land and Women's Empowerment, which was facilitated by our Senior Researcher Philippine Sutz; a brainstorming session on investment treaties and human rights convened by the Business and Human Rights Resource Centre; and the launch of PRIndex – the Global Property Rights Index. We also participated in the 43rd Committee on World Food Security, where we co-organised a side event with Strathclyde University, Edinburgh University and the FAO on legal dimensions of the VGGT.  

Publications and briefings

Our research

China-Africa investment treaties: do they work?
China-Africa investment treaties: do they work?

China is now Africa’s largest trading partner and has signed bilateral treaties with several sub-Saharan African states to promote foreign investment. Drawing on a literature review, a legal analysis of the treaties and interviews with Chinese stakeholders, this report explores the content of the treaties, and whether they achieve their stated goal of promoting foreign investment. It also provides pointers for follow-on research and for policy and practice in China and Africa.

 
Beyond trade deals: charting a post-Brexit course for UK investment treaties
Beyond trade deals: charting a post-Brexit course for UK investment treaties 

While a debate over the UK’s future approach to trade deals has begun following the Brexit referendum, a similar discussion has yet to develop on the treaties that govern foreign investment. The stakes are high and although meaningful negotiations are unlikely to start until the new relationship between the UK and the EU has been clarified, now would be a good time for a policy review to define a new approach.

 
Legacy land issues: Addressing historical disputes in agribusiness investments
Legacy land issues: Addressing historical disputes in agribusiness investments

A dramatic rise in large-scale land acquisitions in low and middle-income countries has led to growing public and media scrutiny of the potential impact on local communities. ‘Legacy’ land issues – disputes the previous owner failed to address – pose risks and can lead to tensions between the new owners and local communities. This briefing sets out what the private sector can do to address legacy land issues in agricultural investments.
 
Rethinking investment treaties to advance human rights
Rethinking investment treaties to advance human rights

There are over 3,000 international investment treaties worldwide, with more under negotiation. The number of investor state arbitrations based on these treaties continues to grow and human rights issues have emerged in several arbitrations. This briefing note discusses human rights issues in investment treaty making and investor-state arbitration, and provides pointers to rethink investment treaty policy. 

 
'Land grabbing' and international investment law: toward a global reconfiguration of property?
'Land grabbing' and international investment law: toward a global reconfiguration of property?

This yearbook chapter discusses the link between international investment law and commercial pressures on natural resources. As pressures on natural resources increase, many national laws are facilitating more commercialised land relations and undermining the rights of affected people. Debates about reforming the investment treaty regime need to consider the local reality of these processes in low and middle-income countries, while the international dimensions need tackling to help secure land rights at the grassroots.
 

Lessons from the field

Pillars of the community: how trained volunteers defend land rights in Tanzania
Pillars of the community: how trained volunteers defend land rights in Tanzania

Training volunteers to help their communities defend their land rights has proved an effective approach for promoting land justice in Tanzania. Hakiardhi, a Dar-es-Salaam based research institute working on land governance issues, has established and trained a 600-strong network of male and female ‘Land Rights Monitors’ on various aspects of the land law, so they can help people and local governments to exercise and ensure respect for their legal rights in land disputes. 
Connected and changing: An open data web platform to track land conflict in Myanmar
Connected and changing: An open data web platform to track land conflict in Myanmar

Conflict over land is a key concern in Myanmar. Land governance bears the mark of past injustices, and as the country opens up to new investments in its farmland and natural resources, changes are putting the livelihoods and land of smallholder farmers at risk. This report presents the work of Open Data Myanmar (ODM), an online database that provides information on land disputes from across the country. 

 
Strengthening women's voices in the context of agricultural investments: Lessons from Tanzania
Strengthening women's voices in the context of agricultural investments: Lessons from Tanzania

Drawing on a literature review conducted by the Tanzania Women Lawyers Association (TAWLA) and IIED, as well as primary field research conducted by TAWLA in 2015, this report provides a backdrop to relevant policies and practice. It includes a gender analysis of the policy framework governing land and investments and recommendations on securing land rights and improving the inclusion of women in land governance processes in Tanzania.
 
Strengthening women's voices in the context of agricultural investments: Lessons from Kenya
Strengthening women's voices in the context of agricultural investments: Lessons from Kenya

Focusing on Kenya, this report’s aims to provide a backdrop to relevant policies and practice, and to inform practitioners, policy makers and researchers about key governance issues relevant to strengthening women’s empowerment in community land stewardship and accountability in agricultural investments. It draws on a literature review by the Kenya Land Alliance (KLA) with additional inputs from IIED, and on primary field research.

Genre et foncier : l’expérience des consultations juridiques gratuites au Sénégal
Genre et foncier : l’expérience des consultations juridiques gratuites au Sénégal [in French only]

L’Association des juristes sénégalaises (AJS) a développé un service de consultations juridiques gratuites dispensées exclusivement aux femmes afin de leur assurer un accès plus effectif à toutes les ressources, dont les ressources agricoles. Ce document présente les avantages et les inconvénients de cette expérience et vise à en partager les enseignements pour reproduire et améliorer ce système et permettre aux femmes les plus démunies de bénéficier de conseils leur ouvrant un meilleur accès à la terre.

Mainstreaming gender in Tanzania's local land governance
Mainstreaming gender in Tanzania’s local land governance

The Tanzania Women Lawyers Association (TAWLA), in partnership with the World Resources Institute (WRI) and Lawyers’ Environmental Action Team (LEAT), developed model by-laws in two villages to improve women’s participation in local-level decision-making on village land management. This report outlines the processes followed to develop the by-laws, the results so far, lessons learned and prospects for scaling up.

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