International Soft-Law Instruments and Global Resource Governance: Reflections on the Tenure Guidelines | Land Portal | Securing Land Rights Through Open Data

Following last week’s meeting of the UN Committee on World Food Security (CFS), this piece reflects on a key CFS soft-law instrument. It is an edited extract from the article “International Soft-Law Instruments and Global Resource Governance: Reflections on the Voluntary Guidelines on the Responsible Governance of Tenure”, Law, Environment and Development Journal (2017) 13(2):115-133. The full article can be freely downloaded at http://www.lead-journal.org/content/17115.pdf.

The governance of land and natural resources is an increasingly prominent issue in international policy agendas, cutting across public concerns about economic development, environmental sustainability, social justice and cultural identity. In many parts of the world, local-to-global socioeconomic change has compounded pressures on natural resources and the institutional arrangements for managing them – from unwritten customary systems to rules, institutions and processes that found their legitimacy on the state.

These evolutions result from deep-seated and long-term transformations, but a recent wave of land-related investments in low and middle-income countries made the issue a higher policy priority. Despite the great diversity of business and legal configurations, many such investments involved the acquisition of long-term rights over large areas of land to establish agribusiness plantations. Several governments saw opportunity in the prospect of greater investment inflows. But the deals also prompted public concerns about land dispossession, environmental degradation and the marginalisation of small-scale rural producers, and they fostered heated debates about control over land and the future of food and agriculture.

Outside the international spotlight, land and resource relations have also experienced wider reconfigurations linked to economic, social and cultural change, including, depending on the context: the growing commercialisation of tenure relations; urban expansion and the involvement of urban elites in acquiring rural land; and the renegotiation of relations between men and women, youths and elders, and first occupants and newcomers – to name but a few headline examples. Land is often at the centre of difficult disputes presenting political, emotive connotations.

The resulting challenges often transcend national boundaries and have fostered calls for international regulation. Natural resources – from genetic to transboundary ones – have long formed the object of international treaties. But political sensitivities led states to maintain land governance largely within the preserve of domestic jurisdiction. As a result, national law has traditionally provided the primary normative reference for regulating land relations. Recent years have witnessed growing recourse to international law in land disputes, reflected in the growing land-related case law of regional human rights institutions and international investor-state arbitral tribunals. Until recently, however, no international instrument tackled land governance in comprehensive terms.

The emergence of international soft-law instruments on land and resource governance has altered this picture. While located outside the realm of international law, these instruments provide relatively detailed guidance for states and/or non-state actors on wide-ranging governance issues. A particularly prominent global instrument is the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (‘Tenure Guidelines’, or ‘VGGT’), which the Committee on World Food Security (CFS) unanimously endorsed in 2012.

Besides creating new arenas to address land and resource issues, these developments raise broader questions about the evolving nature of global governance. In contrast with the traditional inter-state focus of international law making, novel institutional arrangements have enabled non-state actors to play an active role in the development of the Tenure Guidelines. Compared to international treaties, the VGGT also involve a different ‘theory of change’ that promotes reform through multi-stakeholder dialogue, political consensus and international best practice, rather than binding norms.

Approaches that depart from formal regulation have long been theorised in scholarly work, and documented in their actual manifestations, but more rarely monitored in their implementation and ultimate outcomes. The rise of international soft-law instruments in a politically sensitive arena such as resource governance provides opportunities to track the life trajectories of those instruments and their ultimate effectiveness in delivering change. In turn, this could provide insights potentially relevant to a wider range of international policy arenas.

A recent journal article reflects on the Tenure Guidelines as a tool for addressing resource governance challenges. After outlining the process through which the Tenure Guidelines were developed and reviewing key features of their content, the article focuses on two issues: the legal significance of the VGGT, and the nature of initiatives to advance their implementation. While as a voluntary instrument the Tenure Guidelines do not create legal obligations, the article argues that the VGGT nonetheless present elements of normativity and have legal significance, which require lawyers to take their guidance seriously.

At the same time, a vast body of initiatives to translate the Tenure Guidelines into practice has challenged traditional state-centred approaches to the implementation of international instruments within national jurisdictions. The article argues that these circumstances call for more pluralist, ‘bottom-up’ accounts of the processes that give effect to international instruments – highlighting the important role of non-governmental organisations, social movements and citizen groups in promoting change in policy and practice, and of international instruments in promoting active citizenship in politically contested terrains.

 

Lorenzo Cotula is a principal researcher in law and sustainable development at the International Institute for Environment and Development (IIED). You can download the full article at http://www.lead-journal.org/content/17115.pdf.

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