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Workshop on Extraterritorial States Obligations / Access to Natural Resources

Written By Freedam to the nation resettlement of IDPs on Saturday, April 20, 2013 | 5:28 AM

Kathmandu, Nepal 16-19 April 2013
Organized by
FIAN Nepal, FIAN International and the ETO Consortium
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
       State‘s obligations to respect, protect and fulfill,
       Universality, indivisibility and interdependence;
       Human rights sources
        Right to informed participation
       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;
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.
Obligation to create an enabling international environment
 for ESCR fulfillment, ex: Trade,  investment, taxation, finance, Environmental protection, developement cooperation,
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
}   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 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
}  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

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
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

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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