Free Prior and Informed Consent

Proponents of market-based solutions to social injustice argue that environmental, social, and governance integrated investing (‘ESG investing’) has been able to achieve what courts and legislatures worldwide have not: catalyse the rapid disinvestment from extractive industries infamous for human rights abuses. Critiques of ESG investing primarily make predictions about its impact on corporate conducts in the future. Little research exists linking ESG investing to contemporary community struggles for justice over past and continuing harms. Drawing on my work as a paralegal for the South African social movement Mining Affected Communities United in Action (MACUA), and specifically my efforts supporting the Phola Community in its claims against multinational mining giant South32, I argue that ESG investing may decrease the likelihood that communities who have suffered due to corporate misconduct will have their livelihoods and homes restored or receive comparable redress.

The UNIDROIT/FAO/IFAD draft guide on Agricultural Land Investment Contracts is an exciting addition to existing guidance and norms surrounding investor-state (and other) contracts for agricultural projects. One potentially transformative feature is the guide’s discussion of multi-actor contracts (also known as “tripartite contracts”), which would include land-holding communities and other legitimate tenure rights holders as a party. Why is this a good idea? What challenges do we face in encouraging more multi-party contracts? And when are such contracts likely to facilitate the fulfillment a community’s right to give or withhold its free, prior and informed consent (FPIC) and to meaningfully participate in decision making? This submission considers these questions.

The UNIDROIT-FAO-IFAD Legal Guide on Agricultural Land Investment Contracts (The Guide) is a tool to promote responsible agricultural foreign investment. Many international organisations insist that more private investment is needed to meet the sustainable development goals (SDGs). Agricultural foreign investment, particularly, is central to a world with no poverty (SDG 1) and no hunger (SDG 2) (The Guide 2019, 10, 13), but the link between foreign investment and these goals should not be taken for granted. Foreign investment can probably promote these and other SDGs; however, it also creates costs and risks.