Perfil de los miembros
Prof. Yixin Xu
Organización:
Southwest University of Political Science and Law
País:
China
Campo(s) de especialización:
Prof. Yixin Xu
The newly amended Land Administration Law of the People's Republic of China was issued on 26th August 2019 and will become effective from 1st January 2020. It shares some common ground with the ALIC. It prioritizes biodiversity conservation and sustainable development (Art. 18). The acquisition of land is limited to clearly defined purposes and procedures (Art. 45-7). The amendment strengthens the protection of tenure right holders (Art. 48) and simplifies the procedure of the transaction of land tenure rights to non-local entities and individuals (Art. 13).
Considering the international audience of the ALIC, it would be beneficial to have an appendix at the end showing the available official online sources of relevant countries’ national legislation.
Prof. Yixin Xu
Some private companies are willing to invest in sustainable agricultural activities to show their leadership in addressing global environmental or social challenges. However, these investing companies themselves may not be specialized in agricultural projects. Instead of investing directly, they may seek intermediaries. Such intermediaries may have various forms, such as development banks and private companies. They usually have their own teams of experts and codes of conduct. Many explanations of basic legal knowledge may not be helpful for them. For instance, ‘this is because domestic courts can exercise compulsory personal and subject matter jurisdiction over persons and disputes located in that State’s territory’(p.123). Hence, after defining a clear scope of the audience in the revision, the draft may consider rearranging the structure of texts so that legal experts can locate the core issues easier.
Prof. Yixin Xu
Regarding the certification schemes for sustainable agricultural products and supply chains, the draft may also consider adding more clarifications and details. Several separate places mentioned relevant concepts very briefly: para. 2.26. ‘certification providers’ (p. 30), para. 2.56 ‘certification schemes’ (p. 36), para. 3.112 ‘private standards and multi-stakeholder certification schemes’ (p. 74), para. 3.122 ‘private certification schemes’ (p. 77), para. 3.150, ‘certification bodies, which may be public or private entities’ (p. 82). It may be stronger to provide a clear definition at the beginning and explain a bit more about how these certification schemes operate and specific rights and responsibilities that need to be agreed on in the land investment contracts.
Prof. Yixin Xu
Another idea that may be interesting for the parties is the possibility to combine multilateral funding for sustainable agricultural activities. There are multilateral funds that support biodiversity conservation, climate change mitigation and adaption, and capacity building, such as the Global Environmental Fund, Green Climate Fund, and Adaptation Fund. If the planned agriculture activities are relevant to any of those themes above, the parties may consider applying for additional funding and repay with the positive environmental and social results that would be generated regardless. In this context, the parties may need to arrange in their investment contract, which area is for such funding and their relevant rights and responsibilities.
Prof. Yixin Xu
The ALIC zero draft has mentioned many times that environmental issues are one of the important components of the bargain.[1] The draft provides four pathways to ensure positive environmental results, whereas some of them are slightly hidden in the texts. After explaining that there are national and international laws on relevant environmental issues, the draft mainly addresses these issues by suggesting a feasibility study for the investors to be aware of the environmental risks and environmental impact assessments (EIA) as required by the law.[2] The draft also suggests that ‘in response to these potential impacts, investors ought to prepare management programs that create operational procedures, practices, plans, and legal agreements ... These ought to include environmental and social action plans with measurable targets as well as for monitoring and review as well as for stakeholder...’[3] Lastly, the investor may be obliged to pay compensation for the misuse of the land as discussed in Chapter 5.[4]
These pathways are thoroughly listed in the text, whereas the draft should also make it more evident in the table of contents and make it more visible with subtitles. Then it would be easier for practitioners to locate where to look when the non-performance, transfer, and dispute are about environmental issues in Chapters 4, 5, and 6.
Also, it is doubtful whether international and national legal systems can provide a credible EIA to mitigate environmental risks, hence they may not be able to provide ‘assurances that environmental standards will be maintained’.[5] The EIA is sometimes not binding under international law. For instance, in the case of CDM agriculture activities, whether to conduct an EIA is subject to the decision of the designated national authority, and relevant international agencies do not conduct a substantial review.[6] The national/local authorities may have deficient standards or lack of the institutional and financial capacity to hold a credible EIA.[7]
It is a smart idea to ask investors to make environmental plans to prevent future risks. It has happened in international cases, that a project was terminated because the NGOs discovered significant adverse environmental impacts during the implementation. In the case concerning Gabcίkbvo-Nagymaros project, the International Court of Justice (ICJ) ruled the Hungarian government to continue the project, and both parties should apply newly developed norms of environmental law.[8] However, would the private investors be willing to bear such a responsibility (as suggested below, state maybe investors as well. But the discussion here focuses on the private investors)? For those who invest in sustainable agricultural production, are they institutionally and financially capacity to design and implement a mechanism that even international and national authorities could hardly achieve, and then what kind of mechanism it would be? If it is possible, the revision of the draft would be very beneficial for the investors to give more details on the design of such a mechanism (combining operational procedures, practices, plans, legal agreements, and action plans) to mitigate environmental risks.
[1] E.g. ALIC Zero Draft, UNIDROIT/FAO/IFAD (2019), p. 17, 23
[2] Ibid., p. 24
[3] Ibid., p. 47
[4] Ibid., p. 116
[5] Ibid., p. 24
[6] Para. 132, Annex 1, Clean Development Mechanism Validation and Verification Manual, CDM EB 55 Report, p. 26.
[7] Ibid., p. 112; L. Schneider, Is the CDM Fulfilling its Environmental and Sustainable Development Objectives? An Evaluation of the CDM and Options for Improvement. Öko-Institut for Applied Ecology, 2007 (248), p. 1685.
[8] ICJ, Summaries of Judgments and Orders, Case Concerning Gabcίkbvo-Nagymaros Project (Hungary/Silovakia), Judgment of 25 September 1997.
Prof. Yixin Xu
Indeed, a guide cannot make every interest group happy. However, a widely applicable guide with a practical dimension should provide everyone something they need. Foreign investors, grantors, national legislators, NGOs providing aid to negotiating a contract, and third-party certification schemes, every actor has different focuses, perspectives, rights, and responsibilities. The guide has done an impressive job of handling their roles. What would be more helpful is to give guidance from different perspectives and follow the same order of discussion on every issue. For example, in Part I Chapter 2 about legitimate tenure right, the guide can start with the rights and responsibilities of the investors, issues they need to pay particular attention. Then goes to local tenure rights holders, the local or national regulator, and NGOs and third parties afterward.
Prof. Yixin Xu
Among the target audience, I think national legislators and local governments in developing countries who aim to promote the long-term benefits of a local area may be willing to adopt these guidelines. However, a barrier in practice is that the governments are lack of institutional capacity and funding to motivate and monitor the application of the guidelines by practitioners.
Furthermore, I think the guide would also be a valuable reference for the assessing criteria of two self-regulating entities: independent certification schemes for sustainable agricultural products and multilateral funds supporting projects to address environmental and social problems in agriculture activities.
Prof. Yixin Xu
Dear,
Thank you for your response.
Regarding your comment 'So with Legal Guide os Agricultural Land Investiment Contracts I believe it will safeguard the use and safety for investors primarily,' I think the legal guide also shows its intention to protect the rights of local tenure right holders.
The guide states in Preface 4. Focus and guidance (Alic zero draft p.11)
'The Guide, however, focuses on contracts between investors and governments and investors and local communities and, in doing so, places particular emphasis on protecting and respecting the rights of legitimate tenure right holders.'
It also shows an intention to promote the protection of small tenure right holders at other places, for example:
Intro 5, 'The failure to identify, consult and seek participation from any legitimate tenure right holders and, where applicable, obtain free, prior and informed consent (FPIC), is inconsistent with international principles and standards and may undermine those holders’ rights, the investment and even the tenure system itself, particularly when it is based on commons. The parties, instead, are to conduct the necessary due diligence and consultations in this regard, to involve legitimate tenure right holders in the preparations and to work in partnership with them...' (Alic p.14)
Intro. 6. Complexity. '...Indeed, if an investment fails to protect and respect the rights of legitimate tenure right holders, it should not proceed.'
Hence, I wonder whether it would be better to seek a balance between investors and local land grantors so that economic interests can be achieved simultaneously for both parties, as well as social and environmental benefits.
Prof. Yixin Xu
Another point relevant to the target audience is that I am worried that the private parties may not voluntarily apply these guidelines because measures to enhance environmental protection and human rights will increase costs.[1] Foreign private investors may not voluntarily follow the guidelines unless there is enough price premium for more responsible agriculture activities or company branding. Then this process would need to involve independent certification schemes. Additionally, the local farmers in developing countries may not care about the environment or other long-term benefits to the extent of reducing their yearly income.[2] Hence, they may not voluntarily apply the guidelines at the cost of lower income in the short term.
[1] Preface 9, Target Audience, ALIC Zero Draft, UNIDROIT/FAO/IFAD (2019), p. 12. J. M. Rodriguez, et al. "Barriers to adoption of sustainable agriculture practices: Change agent perspectives." Renewable Agriculture and Food Systems 24.1 (2009), pp. 60-71.
[2] W. E. Oates & R. M. Schwab, ‘Economic Competition among Jurisdictions: Efficiency Enhancing or Distortion Inducing?’ (1988) 35 (3) Journal of Public Economics, pp. 333-54, at 351. E. Hettig, J. Lay & K. Sipangule, ‘Drivers of Households’ Land-Use Decisions - a Critical Review of Micro-Level Studies in Tropical Regions’ (2015) 5 (4) Land, pp. 1-32, at 18.
Prof. Yixin Xu
I am also wondering whether the revision of the Zero Draft can include a format contract for users in practice as an annex attached to the guidelines. Thorough explanations and reasoning are beneficial for legal professionals, researchers, and legislators. However, the guide may be too complicated for a layman to comprehend. Notably, in rural areas in developing countries, lawyers are not so popular or widely asked to participate in contract matters. The involved lawyers from the grantors’ side may not have full professional proficiency in English. Therefore, straightforward contract clauses may be more helpful to make the guide more practice-oriented for developing countries.
The contract template can comprise a complete set of optional clauses written in a simple and clear format including fundamental operational issues and arrangements ensuring legitimate tenure rights and responsible/sustainable agriculture investment. There is not a well-known contract template published yet by any independent and authoritative organizations, especially from a perspective of contributing to sustainable development. Parties who are to be engaged in such a transaction can use this document as the basis to formalize a contract by editing, adding, or deleting clauses as they wish.[1] Allowing modifications to the template is essential because it gives flexibility to the practitioners and increases the viability of the guide. At the moment, we cannot expect that all projects in relevant countries can apply the same level of responsible practices.
[1] Preface 4. Focus and Guidance. ALIC Zero Draft, UNIDROIT/FAO/IFAD (2019), p. 11.
Prof. Yixin Xu
The agriculture sector faces multiple globally interactive environmental and social challenges: greenhouse gases emissions, biodiversity loss, food security, and human rights of tenure right holders and indigenous peoples. The ALIC Zero Draft has adopted an exciting angle to tackle these issues. By focusing on the ‘investment contracts involving transaction of tenure and related rights’, the guide actually contributes to setting in advance the framework for actors and activities on the agricultural land in the future.[1] I also find it very insightful and comprehensive in terms of avoiding conflicts between various actors and improving their performances on sustainable agricultural practices.
Before going into detail, I was wondering could the working group clarify the following points about references?[2]
a. ‘the Guide refrains from making specific references to States, identifying particular domestic legislation, citing case studies or quoting contract clauses.’
Does this mean the guide refrains from citing domestic cases or also from cases from international courts or arbitrations?
b. ‘Instead, the Guide refers to international instruments…’
The following example documents are mainly international declarations and guidance, i.e., non-binding. Does the guide also refer to relevant binding international treaties or cases from international courts?
For instance, 3.111 ‘…international courts increasingly require States to conduct and demand an environmental impact assessment…’. A footnote with relevant case numbers will be helpful to support this claim.
[1] Preface 4. Focus and Guidance. ALIC Zero Draft, UNIDROIT/FAO/IFAD (2019), p. 11.
[2] Preface 8, References, ALIC Zero Draft, UNIDROIT/FAO/IFAD (2019), p. 12.