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Dear Friends and Colleagues

Corruption Driving the Global Land Grabbing Crisis

Communities around the world are being robbed of the land on which they depend. According to Global Witness data, in 2015, an average of more than three people each week were killed defending their land against theft and the ruinous impacts of industry (Item 1).

A new report authored by Professor Olivier De Schutter, the former UN Special Rapporteur on the Right to Food, Global Witness, and the International Corporate Accountability Roundtable (ICAR), highlights how corruption is fuelling the global land grabbing crisis, resulting in millions of land grab victims across the world (Item 2). The last decade has seen an upsurge in land grabs for industries like mining, logging, agribusiness, and infrastructure projects, with local communities rarely consulted or compensated. The actors colluding to grab land tend to be corporations, foreign investment funds, national and local State officials, and the governments of wealthy yet resource-poor nations looking to cheaply acquire land.

Corruption enables land grabbing in various ways, for example, when investors pay bribes to public officials in exchange for favorable land leases/acquisitions that violate the rights of local communities, or elites capture the titling process through illegal means and at the expense of local land users. Investors seeking large-scale land acquisitions appear to be targeting countries that suffer high levels of corruption.

A clear conclusion of the report is that any efforts to end land grabbing must also tackle corruption, as the two tend to co-exist and are mutually reinforcing. The report gives recommendations for investing companies, financial institutions, home states and host states so as to ensure that land deals protect the rights of local communities and are transparent and corruption-free.

With best wishes,

Third World Network
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Item 1

NEW REPORT EXAMINES HOW CORRUPTION IS FUELLING WIDESPREAD LAND GRABBING AND HUMAN RIGHTS ABUSES

Josie Cohen
Global Witness
https://www.globalwitness.org/en/press-releases/new-report-corruption-fuelling-land-grabbing/

A new report launched today takes the most comprehensive look to date at how corruption is fuelling the global land grabbing crisis, which has seen millions of people displaced from their homes and farmland.

Tainted Lands, authored by Professor Olivier De Schutter, the former UN Special Rapporteur on the right to food, and leading human rights organizations Global Witness and the International Corporate Accountability Roundtable (ICAR), calls on companies and governments to ensure that land deals are transparent, are corruption-free, and protect the rights of local communities.

"As demand for food, fuel, and commodities increases pressure on land, companies are all too often striking deals with corrupt State officials without the consent of the people who live on it,” said Professor De Schutter. ”The last decade has seen an upsurge in land grabs for industries like mining, logging, agribusiness, and infrastructure projects, with local communities rarely consulted or compensated.”

At worst, these land seizures are fatal. According to Global Witness data, in 2015, an average of more than three people each week were killed defending their land against theft and the ruinous impacts of industry – the deadliest year on record.

Corruption enables land grabbing in a number of ways. It can be simply transactional – when State officials accept bribes from a company to gain access to land, for example. It can also be institutionalised – when decision-making in State bodies such as the police, judiciary, or executive is skewed so that business or political elites can ignore national laws to seize land without facing the consequences.

“What this report makes clear is that any efforts to end land grabbing must also tackle corruption, as the two tend to co-exist and are mutually reinforcing,” said Josie Cohen, Senior Land Campaigner with Global Witness. “Disturbingly, what we’re seeing is that investors seeking large-scale land acquisitions appear to be targeting countries that suffer high levels of corruption. Meanwhile, corruption is distorting the outcomes of government and aid programmes designed to help communities gain security over their lands, resulting in millions of land grab victims across the world.”

The impacts can be devastating. An investigation published in 2015 laid bare the impacts of corrupt land grabs in northeastern Myanmar, where the military colluded with government officials and private companies to seize 1,800 hectares of land. More than 22,000 villagers were affected and are now suffering from food shortages. One farmer explained, ”We were not rich before. We were not poor either. We could survive on our land. But now with less land, life has become very difficult.”

Another exposé revealed how Vietnamese rubber companies used close ties to corrupt political and business elites to establish huge rubber plantations in Cambodia. The companies were also involved in gutting forests of valuable timber, able to ignore land and forest laws thanks to their high-level connections.

Tainted Lands explores existing frameworks that could help protect land rights and tackle corruption, including laws such as the UK Bribery Act and the U.S. Foreign Corrupt Practices Act. The report asserts, however, that much more must be done. It lays out a set of recommendations for governments, companies, and the financial sector. Companies, for instance, need to carry out thorough checks on their supply chains and business partners to ensure they aren’t linked to corruption and human rights abuses. Governments must meanwhile ensure that affected communities are properly consulted and have given their consent before land deals can go ahead.

“Private sector actors and governments need to do far more to ensure that they aren’t driving human rights harms at home or abroad,” said Sara Blackwell, Legal and Policy Coordinator at ICAR. “Not only is the impact on life and livelihood severe, but for companies and investors, becoming embroiled in a corrupt land deal poses major reputational, financial, and legal risks.”

The Tainted Lands report was launched on 15 November 2016 as part of the UN Forum on Business and Human Rights at the Palais des Nations in Geneva. It can be viewed at www.icar.ngo/land-rights.


Item 2

TAINTED LANDS - CORRUPTION IN LARGE-SCALE LAND DEALS

Olivier De Schutter, The International Corporate Accountability Roundtable (ICAR) and Global Witness
https://www.globalwitness.org/en-gb/reports/tainted-lands-corruption-large-scale-land-deals/

EXECUTIVE SUMMARY

In recent years, there has been an unprecedented rise in the sale and leasing of large areas of land, particularly in developing countries. The regions concerned are those where natural resources and land suitable for agriculture, extractive activities, timber concessions, or infrastructure projects is abundant; workforces are cheap; and access to global markets is relatively easy. The investors in these large-scale land leases or acquisitions—referred to as “land deals” or “land investments” throughout this report—are local government and business elites, foreign investment funds, corporations, or governments of cash-rich but resource-poor countries.

This report focuses on one major driver of the adverse human rights impacts of these increasing land investments—corruption. Corruption taints land deals in multiple ways, most notably when investors pay bribes to public officials in exchange for favorable land leases or acquisitions that violate the rights of local communities, elites capture the titling process through illegal means and at the expense of local land users, or investors rely on weak rule of law or corrupt remedial schemes to deny land users’ access to remedy.

Even in the absence of corruption, large-scale land investments may worsen rather than reduce rural poverty, encouraging forms of development that are neither environmentally nor socially sustainable. The Author and developers of this report advocate for investments in local communities and small holder farmers to be prioritized as the best means to achieve sustainable development. However, the focus of this report is to shed light on corruption, which intensifies the negative human rights and environmental impacts of the growing system of large-scale land investments and yet remains largely ignored. As such, this report aims to highlight these impacts and provide recommendations for addressing them while at the same time acknowledging the pressing need for systematic reform.

Project Background

Launched in 2015 by the International Corporate Accountability Roundtable (ICAR) and Global Witness, the “Tainted Lands” project examines the risk of both grand corruption and petty bribes in large-scale land deals and develops recommendations for what can be done to address corruption at all phases of such land leasing and acquisition. In doing so, the project commissioned Professor Olivier De Schutter, former UN Special Rapporteur on the Right to Food, to lead a series of stakeholder consultations and extensive desk-based research toward the development of concrete policy recommendations aimed at eliminating corrupt practices from large-scale land deals.

Report Roadmap

Section I of this report provides an overview of the phenomenon of large-scale land deals. It assesses the trend at a global level and examines structural obstacles faced by efforts to regulate such deals. Within this context, Section II focuses on corruption as a major obstacle to improving the protection of local communities and indigenous peoples whose livelihood, identities, and traditional ways of life depend on the use of local lands and natural resources. This phenomenon is largely understudied because corruption, by its very nature, is hidden and therefore poorly documented. Outlining the current state of play in relation to corruption and land deals, Section III explores domestic legislation, international treaties, and multi-stakeholder initiatives that have aimed to address various aspects of corruption and land rights issues. In Section IV, the report concludes by offering a set of policy recommendations targeted toward: investors, banks and other financial institutions, States where investments in land are made (host States), and States where investors are headquartered (home States).

Report Recommendations

The following is a summary of this report’s key recommendations:

Investing companies should:

  • Undertake a process at all stages of operations to seek the free, prior, and informed consent (FPIC) of all affected communities, including indigenous peoples.
  • Take human rights due diligence measures to ensure that their subsidiaries and business partners do not resort to corruption. Due diligence should be exercised in five key ways:
  1. A prohibition on corruption and a reference to human rights should be inserted systematically into any contract that establishes a long-term, ongoing relationship between an enterprise and a business partner.
  2. Business enterprises should identify general areas where the risk of adverse human rights impacts is most salient and prioritize these areas for systematic human rights due diligence measures. If due diligence reveals that corruption in a country’s land sector is unavoidable, the company should not proceed with the investment.
  3. An investing company should develop and adopt adequate internal controls, ethics and compliance programs, and measures for preventing and detecting both bribery and grand corruption, developed on the basis of a risk assessment addressing the corruption risks facing the enterprise.
  4. Corruption risks should be regularly monitored and re-assessed as necessary to ensure the enterprise’s human rights due diligence measures are adapted and continue to be effective in mitigating the risk of becoming complicit in corruption.
  5. Strongly articulated and visible support and commitment should come from senior management, with one or more senior corporate officers exercising independent oversight of the enterprise’s human rights due diligence measures regarding corruption.
  • Disclose contract terms relating to large-scale land leasing and acquisition, ensuring that, at the very minimum, basic information about the project (including contract term, size of land, purpose of investment, impact assessments, mitigation plans, and local employment and infrastructure commitments) is made available and accessible to potentially affected communities.
  • Focus the company’s disclosure of contract terms and operational transparency on “salient human rights issues,” which are measured by scale, scope, and possibility to remedy.
  • Have in place strong whistleblower protections to ensure that there are no reprisals against them. This will, in turn, make a company’s human rights due diligence policies more effective, as individuals with relevant information may feel safer coming forward.

Banks and other financial institutions should:

  • Ensure that the investors they support in projects involving land tenure risks undertake human rights due diligence to ensure that they or their business partners do not cause human rights violations or resort to corruption.
  • Undertake “customer due diligence” (CDD) upon establishing business relationships with new clients, for occasional transactions that reach a certain level, or where there is suspicion of money laundering. CDD includes identifying both the direct client and the “beneficial owner” to see who is behind the corporate structure, as well as conducting ongoing due diligence on the business relationship and maintaining scrutiny of transactions to ensure consistency with the institution’s knowledge of the customer and its source of funds.
  • Include information on beneficial ownership in publicly available land registries.

Host States should:

  • Fully protect and secure the land and natural resource rights of local communities who depend on the land concerned. These forms of protection should include both the specific protection granted to the lands and territories of indigenous peoples as well as the right of all peoples to freely make use of their natural wealth and resources.
  • Adopt legislative reforms that reduce opportunities for corruption in land deals by implementing principles of transparency and accountability. This should include requiring the public disclosure of income and assets for all elected and senior public officials and their family members. This includes implementing, as a matter of priority:
  1. The “publish what you pay, publish what you receive” principle;
  2. Access to information acts that allow civil society and the media to effectively perform their monitoring roles; and
  3. Legislation ensuring that public servants divulge the assets they and their family members own at the start and end of their tenure in office and regularly throughout. Such reforms would be particularly effective if combined with a prohibition for public sector employees to hold bank accounts outside the jurisdiction concerned, in order to avoid any expatriation of illicit funds—a rule which, in order to be effectively enforced, requires the collaboration of the financial sector.
  • Ensure that negotiations with prospective investors are fully transparent, key contract terms and conditions are disclosed in their entirety before the contract is signed, and that the agreement reached is in the best interests of the local population, as required under human rights law, particularly in relation to the right to self-determination.
  • Ensure that local communities who depend on the land concerned are fully involved in the negotiations, an FPIC process is undertaken with potentially impacted communities, and measures are taken to guard against the bribery of community representatives.
  • Ensure that judicial and non-judicial grievance mechanisms are independent and free from pressure from political or business elites involved in the land sector. In particular, courts should have the capacity and legal authority to review any decision to allocate land, both on procedural and substantive grounds. In particular, courts should be in a position to control the invocation of “public purpose,” “public interest,” or other formulations of the “eminent domain” requirement. Reliance on such provisions should refer not to some abstract or general notion that investment shall contribute to economic growth and therefore to economic progress, but to the specific purposes of the investment concerned, as well as to whether or not it shall improve the situation of the local communities concerned.

Home States should:

  • Prevent human rights violations abroad by business enterprises that are incorporated under the State’s laws or that have a main seat or a main place of business under its jurisdiction. This requires a combination of policy measures (including economic incentives) and regulatory reform.
  • Make corruption in both the public and private sectors a criminal offence and ensure that entities within the State responsible for investigating and enforcing such laws have adequate resources and training to do so effectively.
  • Require that companies domiciled under the State’s jurisdiction take human rights due diligence measures to ensure that their subsidiaries and business partners neither resort to nor benefit from corruption.
  • Require disclosure of details about companies’ land acquisitions in other countries. This requirement should include a description of the negotiation process, information on the seeking of FPIC in the process, and key contract terms such as the size of the land leased or bought, the exact location of the land, the final sale or leasing price, and commitments made to affected communities such as the building of roads, schools, or other infrastructures.
  • Provide victims of human rights abuses with access to the State’s courts to address harms caused by, contributed to by, or linked to companies and/or their subsidiaries incorporated under the State’s laws or that have a main seat or a main place of business under its jurisdiction.

 


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