Legal empowerment for local resource control

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Lorenzo Cotula, 2005 The COTCO-Cameroon contract for the construction and operation of the Chad-Cameroon oil pipeline. Contracts between foreign investors and host states can embody tailored protection of the investor's property rights. 31
32 that characterised the Cold War, no right-to-property provision was included in either of the two main UN human-rights Covenants (the ICCPR and the ICESCR). Therefore, at the global level, treaty provisions on the right to property are confined to specific aspects, particularly in relation to the natural resource rights of indigenous peoples (ILO Convention 169) and to nondiscrimination in property relations on the basis of gender (article 15 of the CEDAW) and race (article 5(d)(v) of the ICERD). Despite the weakness of the global human-rights protection of property, regional human rights systems in Europe and (to a lesser extent) the Americas have developed standards of protection similar to those applicable to foreign investment under international economic law. 15 But differences remain, for instance with regard to requirements concerning exhaustion of domestic remedies 16 and to standards of compensation. 17 However, the gap between the protection of property rights under economic and human rights law is much wider in Africa. Here, the human rights protection of property remains weak. This is due to the more vague formulation of the right to property under the African Charter on Human and Peoples’ Rights (ACHPR) which does not require payment of compensation for takings of property. 18 It is also linked to the less effective remedies provided by the African human rights system compared to its European and American counterparts (e.g. the African Court of Human and Peoples’ Rights was only established in 2006). 19 15. In Europe, under article 1 of Protocol 1 of the European Convention on Human Rights (ECHR) and the extensive case law developed on the basis of this article. In the Americas, under article 21 of the American Convention on Human Rights (ACHR) and the (more limited) case law based on it. The ACHR case law specifically tackles the protection of local resource rights within the context of foreign investment projects, namely in the cases Mayagna (Sumo) Awas Tingni Community v. Nicaragua and Maya Indigenous Communities of the Toledo District v. Belize. 16. Under human rights treaties, persons claiming that their rights have been violated can access international human rights institutions only after having unsuccessfully brought their claims before national courts (“exhaustion of domestic remedies”). On the other hand, where international arbitration applies, foreign investors can access it without having to go before domestic courts first. 17. Standards of compensation for takings of property tend to be stronger under international economic law than under human rights treaties (see e.g. the ECHR case James v. UK). 18. Article 14 of the ACHPR affirms: “The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws”. Thus, article 14 of the ACHPR does not explicitly require payment of compensation for takings of property – it merely refers to the “provisions of appropriate laws”. 19. Until the creation of the African Court in 2006 based on a 1998 ACHPR Protocol, successful ACHPR cases only led to the non-binding decisions of the African Commission on Human and Peoples’ Rights. Even after the establishment of the Court, the Commission is likely to continue to play a key role due to limits in access to the Court for individuals and groups. The non-binding nature of the Commission’s decisions contrasts with the final and binding nature of international arbitral awards under international economic law. The judgements of the African Court are binding – but sanction mechanisms for state non-compliance remain unclear. On the other hand, foreign investors may rely on final arbitral awards to seize host state assets in third countries, thereby obtaining reparation for violations and creating incentives inducing compliance (“pursuit actions”).
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 and 22: 10 1.2. DEFINITIONS, SCOPE AND RATI
Page 23 and 24: 12 generally, the range of strategi
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: 30 compensation), 11 and those on t
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
Page 82 and 83: 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
Page 108 and 109:
the implementation of micro-project
Page 110 and 111:
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
Page 128 and 129:
account is shaped by power relation
Page 130 and 131:
4.3. WHAT NEXT? This study has deve
Page 132 and 133:
V. ANNEXES 121
Page 134 and 135:
years or periodic tenancy, usually
Page 136 and 137:
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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