Legal empowerment for local resource control

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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”).