Legal empowerment for local resource control

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TABLE 1. FOREIGN INVESTMENT IN AFRICA – SELECTED COUNTRIES FDI Stock (millions of dollars) FDI Stock as percentage of GDP (%) FDI Flows (millions of dollars) 1990 (1) 2005 (2) 1980 (3) 1990 (2) 2005 (2) 1980 (3) 1990 (2) 2005 (2) 1980-5 (annual average) (1) Sub Saharan Africa 897 850 17,934 27,724 35,023 179,216 10.9 12.0 27.7 Burkina Faso 1 2 19 18 39 68 1.0 1.4 3.9 Cameroon 154 32 18 330 1044 1072 4.9 9.4 13.9 Ghana 10 15 156 229 319 2073 5.2 5.4 23.2 Kenya 26 26 21 386 668 1113 5.3 7.8 7.5 Mali 4 -1 159 16 229 915 0.9 1.7 16.1 Mozambique 1 0 108 15 42 2386 0.4 1.7 42.6 Namibia NA NA 349 1994 2047 2440 86.4 80.9 39.1 Niger 11 0 12 190 45 127 7.6 11.5 16.6 Nigeria 210 588 3403 2405 23,786 34,806 3.7 28.3 42.6 Senegal 9 2 54 150 258 1126 5.0 4.5 15.3 South Africa 83 -5 6379 16,519 9,207 69,372 20.5 8.2 18.5 Tanzania 8 -2 473 47 388 6029 0.8 0.1 32.9 Uganda 1 0 258 6 1830 0.9 2.2 26.8 Sources : (1) UNCTAD, 1992; (2) UNCTAD, 2006; (3) UNCTAD, 2004. 11
12 generally, the range of strategies and tactics for helping these groups make the most of the opportunities offered by the law. The concept of legal and para-legal tools is further discussed below (section 2.3). The study tackles these issues with specific regard to foreign investment projects in Africa. Foreign investment is defined here following internationally recognised definitions of “foreign direct investment” (FDI). According to UNCTAD, FDI refers to investment made to acquire “a lasting interest and control” in an enterprise operating outside the economy of the investor, and with a view to having “a significant degree of influence on the management of the enterprise” (UNCTAD, 2006:293). As parent companies usually operate in other countries through subsidiaries established under the law of the host state, the term “foreign investor” includes local subsidiaries that are owned or controlled by foreign nationals. The focus on foreign (as opposed to domestic) investment is motivated by socio-economic and policy factors on the one hand, and by legal factors on the other. As for the former, in recent years many African states have made policy efforts to attract foreign investment. A focus on foreign investment is therefore of significant policy relevance. In addition, several African countries have experienced substantial increases in foreign investment flows and stocks (see Table 1 and Chart 1) – although to different degrees (with big shares of investment concentrated in South Africa and in countries with important petroleum and mineral resources, particularly Nigeria; see Table 1); and not to the same extent as other regions like Latin America and South-East Asia (see Table 2). Countries like Ghana, Mali, Mozambique, Senegal and Tanzania, which received limited or very limited foreign investment until the early 1990s, now host sizeable stocks of foreign investment (see Table 1 and Chart 2). And although within the global economy sub-Saharan Africa remains a marginal destination for foreign investment (as suggested by Table 2), for many African countries foreign investment is increasingly important – as indicated by substantial increases of FDI-to-GDP ratios (see Table 1 and Chart 1). While much of the literature has traditionally tackled resource access for local groups in Africa as an eminently “local” issue, this changed situation requires placing local relations within their global context. This includes tackling the specificities of securing local resource rights within the context of foreign investment projects.
Page 1 and 2: Legal empowerment for local resourc
Page 3 and 4: LEGAL EMPOWERMENT FOR LOCAL RESOURC
Page 5 and 6: ABOUT THE AUTHOR Lorenzo Cotula (lo
Page 7 and 8: ICSID International Centre for the
Page 9 and 10: viii
Page 11 and 12: x III. LEGAL TOOLS TO SECURE LOCAL
Page 13 and 14: 2 Legal empowerment can increase lo
Page 15 and 16: 4 and implementing para-legal tools
Page 17 and 18: 6 1.1. OVERVIEW 1.1.1. The issue Ac
Page 19 and 20: 8 local levels. Overall, the law te
Page 21: 10 1.2. DEFINITIONS, SCOPE AND RATI
Page 25 and 26: 14 CHART 2. FDI STOCK IN SELECTED A
Page 27 and 28: 16 the Middle East, to sub-Saharan
Page 29 and 30: 18 2.1. POWER AND LEGAL EMPOWERMENT
Page 31 and 32: 20 where short timeframes would pre
Page 33 and 34: 22 provisions embodied in the const
Page 35 and 36: 24 2.2. FOREIGN INVESTMENT PROJECTS
Page 37 and 38: 26 country power structures through
Page 39 and 40: 28 investor to access a specific lo
Page 41 and 42: 30 compensation), 11 and those on t
Page 43 and 44: 32 that characterised the Cold War,
Page 45 and 46: 34 As a result, the international l
Page 47 and 48: 36 have also created government age
Page 49 and 50: 38 In Africa, very little land has
Page 51 and 52: 40 When conflicts between local and
Page 53 and 54: 42 FIGURE 1. LAW AND POWER IN FOREI
Page 55 and 56: 44 2.3. TOOLS FOR LEGAL EMPOWERMENT
Page 57 and 58: 46 citizens at large use them. The
Page 59 and 60: 48 2.3.2. Para-legal tools The fact
Page 61 and 62: 50 emphasise helping clients themse
Page 64 and 65: III. LEGAL TOOLS TO SECURE LOCAL RE
Page 66 and 67: institutional arrangements, or wher
Page 68 and 69: In Cameroon, efforts to vest strong
Page 70 and 71: Group rights and individual rights
Page 72 and 73:
BOX 4. TOOLS FOR LOCAL GOVERNMENT A
Page 74 and 75:
(section 1 of the Land Act and sect
Page 76 and 77:
BOX 5. LOCAL CONVENTIONS Where stro
Page 78 and 79:
and is meant to shift the balance o
Page 80 and 81:
ights on the ground, which usually
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Denise Malauene Community land regi
Page 84 and 85:
addressed. Reform to strengthen the
Page 86 and 87:
state, local resource users can “
Page 88 and 89:
Another aspect of “who to consult
Page 90 and 91:
occur at a relatively late stage in
Page 92 and 93:
To sum up Mandatory consultation pr
Page 94 and 95:
usually not formalised in the way r
Page 96 and 97:
3.3. TOOLS TO MINIMISE AND COMPENSA
Page 98 and 99:
In some cases, these EIA provisions
Page 100 and 101:
Tighter legal requirements on SIAs
Page 102 and 103:
First, legislation typically requir
Page 104 and 105:
under the Village Land Act, “cust
Page 106 and 107:
prohibits “arbitrary” deprivati
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the implementation of micro-project
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BOX 7. THE SAN OF BOTSWANA: COMBINI
Page 112 and 113:
aise issues about the project’s s
Page 114 and 115:
Tight rules on statutes of limitati
Page 116 and 117:
to hold the parent company responsi
Page 118 and 119:
IV. CONCLUSION 107
Page 120 and 121:
Part III of the study analysed rece
Page 122 and 123:
FIGURE 3. LEGAL TOOLS - CONCEPTUAL
Page 124 and 125:
4.2. FROM LEGAL TOOLS TO LEGAL EMPO
Page 126 and 127:
First, each of the legal tools anal
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account is shaped by power relation
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4.3. WHAT NEXT? This study has deve
Page 132 and 133:
V. ANNEXES 121
Page 134 and 135:
years or periodic tenancy, usually
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5.2. REFERENCES 5.2.1. Literature A
Page 138 and 139:
Egbe, S.E., 2001b, “The Law, Comm
Page 140 and 141:
Platteau, J.P., 2000, “Does Afric
Page 142 and 143:
BACONGO v. Department of the Enviro
Page 144:
Legal empowerment for local resourc
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Legal empowerment for local resource control

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