Legal empowerment for local resource control

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Lorenzo Cotula, Senegal, 2007 Access to courts is problematic in much of rural Africa. are targeted on criminal law cases (which excludes disputes between local resource users, foreign investors and/or the host state). Because of these asymmetries in the “capacity to claim”, foreign investors may be better able to use available opportunities for securing resource rights to their full potential. This reinforces asymmetries in the protection of resource rights. 2.2.3. To sum up The analysis undertaken in this chapter has revealed power asymmetries between foreign investors, the host state and local resource users. These asymmetries are rooted in social, political, economic, cultural and other factors. It has also revealed how the legal architecture governing resource 41
42 FIGURE 1. LAW AND POWER IN FOREIGN INVESTMENT PROJECTS rights in Africa tends to vest significant control over natural resources with the central state, and to accord greater protection to the resource rights of foreign investors than to those of local resource users. In addition, foreign investors tend to have greater “capacity to claim” their legal entitlements than local resource users, due to economic, political, social, geographic and other factors. In other words, power asymmetries are reflected in differences in the content of the law and in the capacity to use it (“power on the law” in the conceptual framework followed here – see section 2.1.2 above); while unequal protection of legal entitlements reinforces power asymmetries – with the negotiating power of local resource users vis-à-vis investors being undermined by the insecurity of their resource rights (“power by the law”, section 2.1.2 above). These findings are visualised in Figure 1 above. Power relations also exist within the law. They permeate relations between different bodies of rules within the same legal system (e.g. within international law, between human rights law rules providing high principles not backed by effective enforcement mechanisms, and economic law rules providing more effective substantive protection and remedies); and
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 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: 40 When conflicts between local and
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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