Although land-based concessions may cover land that technically belongs to the government, in reality such land is often used by, and is sometimes necessary to the survival of, local community members. As a result, many communities have mobilized against such concessions, seeking continued access to, or formalized rights over, the awarded land. If governments wish to respond to popular protests and petitions, they may confront powerful investors who insist on investor protections granted in contracts and treaties. In this context, democratic responsiveness can open up a host government to potential liability, and can lead to costly investor-state dispute settlement not before a court of law, but before arbitral tribunals outside the country where the conflict ensued.
The first panel used the research contained in CCSI’s forthcoming report, Land deal dilemmas: Grievances, human rights, and investor protection, slated for publication in March, to explore the options available to governments seeking to address grievances arising from concessions that have been awarded. This discussion focused on the constraints placed on governments by existing international legal frameworks, as well as the remedies available within these frameworks. The panel further considered the advantages and risks of these remedies.
The second panel questioned the adequacy of existing frameworks for the governance of essential resources. Drawing on the theoretical framework and empirical research contained in Governing Access to Essential Resources, a recent publication sponsored by the Center on Global Legal Transformation at Columbia University, panelists explored the appropriateness of using the pricing mechanism to structure access to essential resources, such as land (under certain conditions), and proposed normative principles, such as “Voice” and “Reflexivity,” as guidelines. Using this framework, they questioned absolutist notions of property rights that underlie contemporary transnational land concession contracts and regimes, contrasting such notions to the “thick” and flexible understandings of property rights that inhere in many domestic legal systems where Voice and Reflexivity are respected.
Nikhil Anand, Assistant Professor of Anthropology, University of Pennsylvania
Richard Brooks, Charles Keller Beekman Professor of Law, Columbia Law School
Kaitlin Cordes, Head: Land and Agriculture, Columbia Center on Sustainable Investment
Lise Johnson, Head: Investment Law and Policy, Columbia Center on Sustainable Investment
Susan Karamanian, Associate Dean for International and Comparative Legal Studies, The George Washington University Law School
Katharina Pistor, Professor of Law, Columbia Law School; Director, Center on Global Legal Transformation
Peter Rosenblum, Professor of International Law and Human Rights, Bard College