Kathmandu, Nepal 16-19 April 2013
Organized
by
FIAN Nepal,
FIAN International and the ETO Consortium
Participations
Nepal
India
Srilanka
Bangalidesh
Pakistan
Objectives of the Workshop
Expected
Outputs Part 1:
-
Clarity/Knowledge on the concepts
-
Additional CSOs and academics join the ETO
Consortium
-
Strategy developed for advancing ETOs in SA
-
Exchange of experiences of violations and steps
taken at different levels
-
Practical skills/ Tools for analyzing ETO cases applying
ETO Maastricht principles
-
Establish a South Asia ETO coordination focal point
to guide the follow up
Expected
Outputs Part 2:
-
Clarity/Knowledge on the concepts (Land tenure GL
/Right to Land/Land grabbing)
-
Exchange of experiences of violations and steps
taken at different levels
-
Practical skills/ Tools for analyzing cases from
right to food / right to land perspective and to apply the Guidelines
-
Formulate strategies and initiate joint actions at
country/regional level against land grabbing and for the promotion of the Tenure
Guidelines
THE ETO PRINCIPLES[Extraterritorial States Obligations]
• Codificatión and progressive
development
• Sources: International treaties, costumary law, Jurisprudence, general comentes and
concluding observations of HR Treaty bodies.
• Característics: Principles v. Guides
• Use: Adjudication , lobby, setting precedentes,
awareness raising
ETO: The Concept (P.8)
a) States’
acts and/or omissions, within or beyond its territory, having effects on the
enjoyment of human rights outside of that State’s territory
b) Cooperation Obligations (Global Obligations)
General principles
Remembering Human
Rights principles:
• Human Dignity
• Non discrimination and equality
• Transparency
• Accountability
• State‘s obligations to respect, protect
and fulfill,
• Universality, indivisibility and
interdependence;
• Human rights sources
• Right to informed participation
ETO OBLIGATIONS – RESPECT
(19-22)
• Take
action, separately, and jointly to refrain from conducts which nullifies or
impairs the enjoyment and exercise of of
ESCR including beyond borders (Direct interference)
• States
must refrain from any conduct which (indirect interference):
a) impairs the ability of
another State or international organization
to comply with ESCR obligation.
b)aids, assists, directs,
controls or coerces another State or international organization to breach that
State’s or that international organization’s obligations regarding ESCR, where
the former States do so with knowledge of the circumstances of the act.
• Refrain
from sanctions and embargoes
ETO Obligations – Protect
(23-27)
• Obligation to take action to protect,
jointly or separately
• Includes obligation to regulate
non-State actors they are in a position to regulate
• Including
administrative, legislative, investigative, adjudicatory , diplomatic and other
measures.
• Duty
to refrain from nullifying or impairing the discharge of this obligation to
protect.
In each of the following circumstances:
a) harm or threat originates or occurs on its territory
b) where the non-State actor has the nationality of the State concerned;
c) as regards business enterprises, where the corporation, or its parent or controlling company, has its centre of activity, is registered or domiciled, or has its main place of business or substantial business activities, in the State concerned;
a) harm or threat originates or occurs on its territory
b) where the non-State actor has the nationality of the State concerned;
c) as regards business enterprises, where the corporation, or its parent or controlling company, has its centre of activity, is registered or domiciled, or has its main place of business or substantial business activities, in the State concerned;
d) where there is a reasonable link between the State
concerned and the conduct it seeks to regulate, including where relevant
aspects of a non-State actor’s activities are carried out in that State’s
territory; ex.($)
e) where any conduct impairing economic, social and cultural rights constitutes a violation of a peremptory norm of international law. Where such a violation also constitutes a crime under international law, States must exercise universal jurisdiction over those bearing responsibility or lawfully transfer them to an appropriate jurisdiction.
e) where any conduct impairing economic, social and cultural rights constitutes a violation of a peremptory norm of international law. Where such a violation also constitutes a crime under international law, States must exercise universal jurisdiction over those bearing responsibility or lawfully transfer them to an appropriate jurisdiction.
ETO OBLIGATIONS – FULFILL (28-35)
Obligation to create an enabling international environment
for ESCR fulfillment, ex:
Trade, investment, taxation, finance,
Environmental protection, developement cooperation,
Through:
a) elaboration,
interpretation, application and regular review of multilateral and bilateral
agreements as well as international standards;
b) measures and
policies by each State in respect of its foreign relations, including actions within international
organizations, and its domestic measures and policies
Tenure
Guidelines -
Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests
Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests
Overview
} Adopted by the CFS in May 2012
} Developed in an inclusive and
participatory process which lasted more than three years
} First international instrument on
the governance of natural resources, which applies an approach based on
economic, social and cultural rights
Nature and
scope
} Preface: TG are intended to
“contribute to the global and national efforts towards the eradication of
hunger and poverty” and pursue “the overarching goal of achieving food security
and the progressive realization of the right to adequate food in the context of
national food security.”
} In order to achieve this, secure
tenure rights and equitable access to land, fisheries and forests are crucial
Tenure“
} “Tenure is the relationship, whether defined
legally or customarily, among people with respect to land, fisheries, forests
and other natural resources.“ (FAO)
} Governance
of Tenure: who decides
which resources can be used by whom and under which conditions, and how this
decision making should be done.
TG are intended
to serve as a reference and provide practical guidance to governments to
improve governance of these resources
NOT a Human Rights Instrument, but a Policy instrument
But:
} refer to existing binding
international human rights obligations
} First authoritative international
interpretation and guidance on how to implement existing binding international
human rights obligations related to land and natural resources
Content
Seven parts:
} Objectives,
nature and scope of the Guidelines;
} General principles, rights, and
responsibilities;
} Legal recognition and allocation of
tenure rights;
} Transfers and other changes to
tenure rights (such as restitution and redistributive reforms);
} Administration of tenure (e.g.
taxation);
} Responses to climate change and
emergencies (such as natural disasters and conflicts);
} Promotion, implementation,
monitoring and evaluation of the Guidelines.
Towards an
Assessment
a) CS
participation
} TG are result of a process that
lasted over three years
} regional consultations on all
continents and several rounds of negotiations in the newly reformed CFS (4 with
CS)
} autonomous and self-organized
participation of
civil society, facilitated by International Facilitation Group of the
International Planning Committee for Food Sovereignty (IPC), then by a CSM
working group
Reasons for CS participation:
} continuation
of nearly two decades of struggling for equitable and sustainable access to and
control over natural resources for food production (World Food Summit 1996,
International Conference for Agrarian Reform and Rural Development (ICARRD)
2006 etc.)
} context
of new wave of land grabbing
} incorporate into the FAO work the
existing international human rights and environmental law provisions protecting
the rights to land and natural resources of all rural constituencies
} contribute to a more democratic
decision making process for food and agriculture
“CSO
Guidelines”:
Civil society proposal, which condenses CSOs’ visions and aspirations on how land and natural resources should be governed to achieve food sovereignty
Civil society proposal, which condenses CSOs’ visions and aspirations on how land and natural resources should be governed to achieve food sovereignty
b) Limitations…
Water was excluded
Focus on tenure of resources, not use and management
No ban on land grabbing
No further consolidation of provisions contained in UNDRIP
Voluntary…?
c)
…and strengths
Guidelines are anchored in the existing obligations under international
human rights law, explicitly mentioning the UDHR (1.1)
Principles of implementation: human dignity, non-discrimination, gender
equality, holistic approach
call states to provide legal recognition for legitimate tenure rights,
particularly customary and informal tenure rights which are not currently
protected by law
} provisions seeking to protect local
communities, indigenous peoples and vulnerable groups from land speculation and
land concentration
} include a number of safeguards to
protect local people from the risks of land acquisition
} Underline
the responsibility of non-state actors, including business enterprises, to
respect human and tenure rights
} (Implicitly)
recognize states’ extraterritorial obligations (paragraphs 3.2 and 12.15).
Next steps
} Support social movements and CSOs asking
for implementation at national level
} Disseminate Guidelines and ensure
interpretation according to HR standards
} Monitor governments, agencies,
international organizations etc.
} Use them in case work
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