While not legally binding, the VGGT rest upon international law and agreed norms regulating corporate responsibilities. The VGGT state:
“These Guidelines should be interpreted and applied consistent with existing obligations under national and international law, and with due regard to voluntary commitments under applicable regional and international instruments. They are complementary to, and support, national, regional and international initiatives that address human rights and provide secure tenure rights to land, fisheries and forests, and also initiatives to improve governance. Nothing in these Guidelines should be read as limiting or undermining any legal obligations to which a State may be subject under international law.”(Article 2.2)
Several international rights agreements recognize rights related directly and indirectly to land and forest tenure. It is a company’s responsibility to understand and uphold its responsibilities under international law and agreements. Below are several of the most relevant to this Guide:
United Nations Guiding Principles on Business and Human Rights (UNGPB)7
“The responsibility of business enterprises to respect human rights applies to all enterprises regardless of their size, sector, operational context, ownership and structure.” (UNGPB Article 14)
Companies must also abide by international human rights standards in the application of the VGGT. In particular, the United Nations Guiding Principles on Business and Human Rights (UNGPB) provide a framework that can help to understand how a company can act consistently with the intent of the VGGT. The framework establishes that states have a duty to protect the human rights in their jurisdiction, that companies have a responsibility to respect those human rights and that all citizens should have access to remedy in the case of a human rights violation. Though tenure rights are not a human right, because of their importance to the realization of many human rights, companies have a responsibility to ensure that their land use (or that of their suppliers) does not abuse the human rights of their host communities. 8
According to the United Nations High Commissioner for Human Rights:
“Business enterprises, which are often influential actors in the governance of land and other natural resources, including through market mechanisms, have human rights-related responsibilities. National and transnational companies involved in land deals, investments and extractive and other activities involving the acquisition, use or alteration of lands bear a responsibility not to infringe on the rights of other users and owners through their activities, and to address any adverse impact arising as a result of their actions.” 9
The Universal Declaration of Human Rights 10 and International Covenant on Economic, Social and Cultural Rights 11
“Everyone has the right to own property alone as well as in association with others.” (UNDHR Article 17.1)
“No one shall be arbitrarily deprived of his property.” (UNDHR Article 17.2)
“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” (UNDHR Article 25.1)
“The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.” (ICESCR Article 11.1)
While not explicitly referencing land and forest tenure rights, the UN Declaration of Human Rights guarantees the right to food and housing. In most developing economies, food security and housing is directly linked to one’s tenure rights. Moreover, the right to own property and not be arbitrarily deprived of property is relevant to communities and households with legitimate tenure rights where it has not been legally registered. In some places, a community or household’s ability to formally register their land and forest tenure rights is impeded by high costs and bureaucratic complexities.
UN Declaration on the Rights of Indigenous Peoples (UNDRIP) 12
“Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the Free, Prior and Informed Consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.” (UNDRIP Article 10)
“Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired” (UNDRIP Article 26 1.)
“Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.” (UNDRIP Article 26.2)
“States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.” (UNDRIP Article 26.3)
The tenure rights of Indigenous Peoples were recognized in 2007 through UNDRIP. The VGGT note that states and other parties must hold consultations and obtain the Free, Prior and Informed Consent of Indigenous Peoples before any project affecting their tenure rights may proceed. (Article 9.9)
ILO 169: Indigenous and Tribal Peoples Convention 13
“The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised.” (ILO Article 14.1)
“The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded.” (ILO Article 15.1)
ILO 169 was one of the first international agreements that included provisions calling on states to recognize and protect the land rights of Indigenous Peoples and other tribal peoples. The VGGT make reference to ILO 169 as it pertains to a state’s obligation. Companies operating in places with Indigenous Peoples that remain unprotected by national legislation have a responsibility to respect FPIC and the rights of the local Indigenous Peoples.
UN Basic principles and guidelines on development-based evictions and displacement 14
“Transnational corporations and other business enterprises must respect the human right to adequate housing, including the prohibition on forced evictions, within their respective spheres of activity and influence.” (Article 73)
The VGGT place the responsibility of protecting against forced evictions on states (Article 7.6). How- ever, according to the VGGT, it is a company’s responsibility to respect all human rights. If the company’s planned operations are likely to cause the forced evictions of any community or individual, the company may be contributing to or inflicting human rights abuses.
7 UN-OHCHR. 2011. Guiding Principles on Business and Human Rights.
8 See also: Human Rights Reporting and Assurance Frameworks Initiative.
9 OHCHR. 2014. Report of the United Nations High Commissioner for Human Rights on Land and Human Rights.
10 UN. 1948. Universal Declaration of Human Rights.
11 UN. 1966. International Covenant on Economic, Social and Cultural Rights
12 UN. 2007. United Nations Declaration on the Rights of Indigenous Peoples.
13 ILO. 1989. Indigenous and Tribal Peoples Convention.
14 UN-OHCHR. Basic Principles and Guidelines on Development-based Evictions And Displacement: Annex 1 of the report of the
Special Rapporteur on adequate housing as a component of the right to an adequate standard of living. A/HRC/4/18.