MAINSTREAMING LAND RIGHTS IN THE UN GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS IN ASIA

Land Rights are Human Rights

Though there is no independent right to land as recognized by major international conventions, land rights are human rights, noting the deep interrelatedness of land with other human rights. Once use, access, and or control over land is lost, not only is the right to property affected, many other resources, freedoms, and abilities are also impacted. Land rights are also directly linked to rights to livelihood, shelter, culture, identity, among others. As Prof. Surya Deva mentioned, land is unique as a resource, because it can support communities and livelihoods for generations. Land rights being vital to other human rights is also apparent in the way land is crucial in achieving all Sustainable Development Goals.

However, with land being limited and finite, there are also competing interests over it. These competing interests have time and again led to conflicts, which have led to violence, loss of life, and deterioration of livelihood. In recent years, the number and intensity of land conflicts have been increasing rapidly.

Many of these conflicts are between communities who depend on land for their sustenance and survival, private corporations who seek to reap profit from land which they see as a commodity, and the government. As Commissioner Gwen Gana notes, while it is true that businesses may positively impact communities and contribute to development, the negative impacts of businesses also undermine human rights. These conflicts between communities and businesses and/or the government, has resulted in large-scale displacement, land grabbing, and disregard for free, prior, and informed consent (FPIC).

These unfortunate scenarios were exemplified in the six country case studies on land grabbing (featuring cases from Bangladesh, Cambodia, India, Indonesia and the Philippines) presented by Antonio Quizon. Common themes that were observed include: legal landgrabs, or the role of government in facilitating investments or in transferring high value lands to the private sector without ensuring adequate protection of affected communities; the lack of transparency or peoples’ participation in the land acquisition process; the use of force, fraud, deception, or coercion from governments and private corporations; and resistance from communities being painted in a bad light.

Over time, it is observed that States have become more active in brokering land investments. And over time, land is commodified not just as a factor of production, but as a resource whose value will only increase, thus leading to speculation, financialization, and securitization of land. All these are ongoing while policies for secure tenure are underdeveloped or are not being implemented properly.

Integrating Land Rights in BHR Processes and NAP Formulation

Among Asian countries, only the governments of Japan and Thailand have published standalone BHR National Action Plans (NAP/s) that detail their strategies to implement the UNGPs. South Korea has a human rights action plan which contains a chapter on BHR. Meanwhile, NAPs are being developed by the governments of India, Indonesia, Malaysia, Mongolia, Pakistan, and Vietnam. Within these countries, and in States where NAP development has yet to begin, there are opportunities to ensure that land rights are considered in the NAP.

Among the hindrances to the advancement of NAP-development and BHR implementation, as observed by Geminiano Sandoval in six countries, is the lack of understanding of BHR concepts from governments, civil society, and communities; and while there are many progressive land rights laws, some of them seemingly clash with policies that facilitate land acquisition for business on the other. These observations were also mirrored by panelists from the government and National Human Rights Commissions.

Further, the trend of shrinking democratic space that has restricted free speech and expression has affected civil society’s ability to lobby for the creation of a NAP. The limitations brought on by the COVID-19 pandemic has also impeded the NAP-formulation process in recent times.

The role of NHRI/Cs in implementing the UNGP-BHR is crucial, as these bodies monitor State actions on land rights along with other human rights. However, in some countries, it’s been observed that the independence and influence of NHRI/Cs are weak, or are undermined by government. There are also countries such as Cambodia, who presently do not have its own independent human rights institution.

Overall, participants agreed that while land rights are broadly recognized by Asian governments, the present models of development through corporate intervention are unsustainable. However, businesses should not view land rights defenders and civil society organizations (CSOs) as adversaries as both camps should be on board towards implementing the UNGPs together. Speakers and participants shared the following recommendations throughout the forum.

OVERALL

• At the global level, enact a legally binding instrument on BHR to make States more accountable to implement the UNGPs.

FOR GOVERNMENTS

• Prioritize the enactment of NAPs at the national level, along with an appropriate monitoring mechanism, in close consultation with NHRIs, CSOs, and local communities.
• Review, reform, and enact policies that strengthen land rights and integrate the UNGPs. Implement agrarian reforms, FPIC and other safeguards, and enact policies that protect smallholders from unfair or unjust land investments.
• Establish an independent NHRI in Cambodia.
• Focus on resolving land conflicts – create or refine the implementation of case documentation and monitoring and strengthen local mediation mechanisms such as grievance desks to benefit communities. Establishing independent land dispute agencies may also be explored to speed up responses to conflicts.

FOR BUSINESS

• Include the UNGPs in company policies in all stages of operation.
• Work with land rights defenders to promote and uphold human rights.
• Conduct meaningful, non-deceptive human rights due diligence in cooperation with local communities before starting any project.
• Provide holistic and effective remedies that go beyond monetary compensation.

FOR ALL STAKEHOLDERS

• Popularize the UNGPs among governments, private sector, businesses, and communities through information campaigns, workshops and trainings, social media and mass media utilization.
• Facilitate partnerships between CSOs, communities, private sector, and the government and expand the network of advocates to pressure governments into formulating people-centered NAPs that include land rights.