Law Commons^™

Law, Labour And Landscape In A Just Transition, Adrian A. Smith, Dayna Nadine Scott

Articles & Book Chapters

Taking conflicts over new solar energy projects on the agricultural landscape in the global North as its backdrop, the chapter demonstrates how work and labour (including that performed in the North by workers from the global South) are erased both by the opponents and the proponents of such projects. The erasure is consistent with prevailing ways of knowing the human-environment nexus, shaped by an underlying political economy derivative of how international law has constructed and maintained the foundational liberal mythology that separates labour from land. Grounded in our commitment to pursuing a ‘just transition’ to decarbonisation – that is to …

Johnson V. M'Intosh: Christianity, Genocide, And The Dispossession Of Indigenous Peoples, Cynthia J. Boshell

Cal Poly Humboldt theses and projects

Using hermeneutical methodology, this paper examines some of the legal fictions that form the foundation of Federal Indian Law. The text of the U.S. Supreme Court’s 1823 Johnson v. M’Intosh opinion is evaluated through the lens of the Convention on the Prevention and Punishment of the Crime of Genocide to determine the extent to which the Supreme Court incorporated genocidal principles into United States common law. The genealogy of M’Intosh is examined to identify influences that are not fully apparent on the face of the case. International jurisprudential interpretations of the legal definition of genocide are summarized and used as …

Perlindungan Terhadap Pihak Ketiga Yang Beritikad Baik Dalam Proses Jual Beli Tanah (Ditinjau Dari Putusan Pengadilan Negeri Denpasar Nomor 800/Pdt.G/2013/Pn.Dps Dan Putusan Pengadilan Negeri Palembang Nomor 3/Pid.Sus-Tpk/2014/Pn.Plg), Daniel Alexander Siregar

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Of the many cases of land emerging in Indonesia often collide with many aspects of application, namely the clash between national law/positive law and the original law/customary law on the local community, or clash with multiple ownership of a land object. To examine this issue, it is of course worth a further review of why this can happen, and need to reflect on whether what makes this phenomenon appear to be so difficult to find a definite solution. Then it can not be denied again the rise of land brokering practices that make Indonesia increasingly becoming a very difficult country …

Transparency Of Land-Based Investments: Cameroon Country Snapshot, Sam Szoke-Burke, Samuel Nguiffo, Stella Tchoukep

Columbia Center on Sustainable Investment Staff Publications

Despite a recent transparency law and participation in transparency initiatives, Cameroon’s investment environment remains plagued by poor transparency.

In a new report focusing on agribusiness projects in Cameroon, CCSI and the Centre pour l’Environnement et le Développement (CED) find that:

• Communities continue to be excluded from decision-making around investments.
• The government pursues a top-down approach to concession allocation and remains reluctant to recognize all legitimate tenure rights.
• The government faces threats to its legitimacy as the grievances of citizens and investors alike lead to the barring of roads by communities and investor withdrawals.

CCSI and CED therefore call for:

• A …

Incorporating Free, Prior And Informed Consent (Fpic) Into Investment Approval Processes, Kelly Dudine, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Investment approval processes are the gateway through which governments set the agenda for their country’s investment environment. Yet too often these processes fail to incorporate meaningful requirements regarding participation in decision-making by Indigenous and other affected communities, increasing the risk of under-performing and conflict-ridden investments.

Enabling meaningful participation by rights holders and obtaining and maintaining their Free, Prior and Informed Consent (FPIC) throughout different investment approval processes can help governments to fulfill their legal obligations, mitigate financial and political risk, and, ultimately, attract more sustainable land-based investments.

Featuring concrete guidance and drawing on case studies from Kenya, Liberia, Mexico, Peru, …

Submission To Bonsucro Re Production Standard V5 (2019-21), Nami Patel, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

In July 2020, CCSI made a formal submission to Bonsucro, an international multi-stakeholder initiative and certification scheme concerned with promoting sustainable sugar cane production. The submission formed part of consultations for Bonsucro’s draft Production Standard version 5. CCSI’s submission focused on challenges associated with implementing, and auditing for compliance with, three aspects of Bonsucro’s draft standard, namely:

• Obtaining the free, prior and informed consent (FPIC) of Indigenous and traditional communities when establishing or expanding sugar production operations
• Implementing transparent and participatory processes to assess, monitor, and evaluate the environmental and social impacts of new and existing projects; and
• Establishing accessible …

Strengthening The U.S.-Japan Alliance: Pathways For Bridging Law And Policy, Columbia Law School, 2020, Nobuhisa Ishizuka, Masahiro Kurosaki, Matthew C. Waxman

Faculty Scholarship

During the three years leading up to this year ’s 60th anniversary of the signing of the 1960 U.S.-Japan Security Treaty, a series of workshops were held under the joint sponsorship of Columbia Law School’s Center for Japanese Legal Studies and the National Defense Academy of Japan’s Center for Global Security. Bringing together experts in international law and political science primarily from the United States and Japan, the workshops examined how differing approaches to use of force and understandings of individual and collective self-defense in the two countries might adversely affect their alliance.

The workshop participants explored the underlying causes …

Outcome Report On The Climate Crisis, Global Land Use And Human Rights Conference, Mateusz Kasprowicz, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

On September 27^th, the Columbia Center on Sustainable Investment (CCSI), the Sabin Center for Climate Change Law, Landesa, the New York City Bar Association International Environmental Law Committee, and Wake Forest Law School hosted a day-long conference on the intersection between land use, the climate crisis and clean energy transition, and human rights.

Held at the Ford Foundation Center for Social Justice, the conference brought together individuals from civil society organizations, governments, and academia, as well as lawyers, climate scientists, land-rights experts, indigenous representatives and other stakeholder groups. The panelists analyzed the critical role that land plays in …

Briefing For Civil Society Organizations – Understanding Commercial Eucalyptus Plantations: How Do They Work And What Are Their Environmental Impacts?, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

If a company wants to use a community’s land for eucalyptus plantations, the community should think carefully about whether this is a good idea. Civil society organizations that support communities can use this briefing to help communities understand the potential environmental impacts the community should be aware of. The briefing explains plantation forestry and the life-cycle of eucalyptus tree plantations. It also notes the different possible negative environmental impacts of eucalyptus plantations before exploring how this information can be factored into community decision-making about a proposed eucalyptus plantation. While the briefing focuses on eucalyptus plantations, a lot of it will …

Innovative Financing Solutions For Community Support In The Context Of Land Investments, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Communities affected by agricultural, forestry, and other resource investments urgently need increased funding for legal and technical support. Without support, communities risk losing access to critical land and resources, suffering human rights violations, or missing opportunities to benefit from investments. A lack of community support can also lead to conflict and challenges that are damaging for companies and host governments.

Donors and support providers have found ways to finance support for communities, but such efforts can only extend so far. Promising new opportunities exist for filling the financing gap, yet they will require sustained efforts by a range of actors. …

Whose Land Is It Anyway? Navigating Ghana's Complex Land System, Aimee Kline, Élan Moore, Elizabeth Ramey, Kevin Hernandez, Lauren Ehrhardt, Megan Reed, Morgan Parker, Samantha Henson, Taylor Winn, Taylor Wood

Texas A&M Law Review

This Article dives into Ghana’s complex land-registration system, which is influenced by both statutory and customary law. Section II discusses Ghana’s statutory land laws. Section III provides a brief overview of Ghana’s customary land laws. Section IV discusses several obstacles within Ghana’s land-administration system.

Community-Investor Negotiation Guide 2: Negotiating Contracts With Investors, Sam Szoke-Burke, Rachael Knight, Kaitlin Y. Cordes, Tehtena Mebratu-Tsegaye, Marena Brinkhurst

Columbia Center on Sustainable Investment Staff Publications

Deciding whether or not to allow an investor to use community lands and natural resources is one of the most important decisions a community can make. If an investment project is carried out in a respectful and inclusive way, it may help community members to achieve their development goals, which may include creating jobs and local economic opportunities. But investments come with risks. Investment projects may make the land that community members need for farming and other livelihood activities unavailable for some time. They may pollute local rivers, lakes, air, and soils, or block access to sacred areas or water …

Community-Investor Negotiation Guide 1: Preparing In Advance For Potential Investors, Rachael Knight, Kaitlin Y. Cordes, Sam Szoke-Burke, Tehtena Mebratu-Tsegaye, Marena Brinkhurst

Columbia Center on Sustainable Investment Staff Publications

Deciding whether or not to allow an investor to use community lands and natural resources is one of the most important decisions a community can make. If an investment project is carried out in a respectful and inclusive way, it may help community members to achieve their development goals, which may include creating jobs and local economic opportunities. But investments come with risks. Investment projects may make the land that community members need for farming and other livelihood activities unavailable for some time. They may pollute local rivers, lakes, air, and soils, or block access to sacred areas or water …

Governing Land Investments: Do Governments Have Legal Support Gaps?, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In the wave of efforts to encourage and support more “responsible” land investments, one aspect has been largely overlooked: are governments equipped with the legal and technical support needed to effectively negotiate and conclude investment contracts that lead to responsible outcomes?

CCSI researched how host governments access legal support in the planning, negotiation, and monitoring of land investments, with a view to better understanding where legal support gaps for governments exist, and how these can be addressed by governments themselves, as well as by donors, support providers and investors.

By scrutinizing “legal support gaps,” CCSI sought to identify possible weak …

Governing Land Investments: Do Governments Have Legal Support Gaps?, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In the wave of efforts to encourage and support more “responsible” land investments, one aspect has been largely overlooked: are governments equipped with the legal and technical support needed to effectively negotiate and conclude investment contracts that lead to responsible outcomes?

CCSI researched how host governments access legal support in the planning, negotiation, and monitoring of land investments, with a view to better understanding where legal support gaps for governments exist, and how these can be addressed by governments themselves, as well as by donors, support providers and investors.

By scrutinizing “legal support gaps,” CCSI sought to identify possible weak …

Conference Report: Climate Change And Sustainable Investment In Natural Resources: From Consensus To Action, Columbia Center On Sustainable Investment, Sustainable Development Solutions Network, Sabin Center For Climate Change Law

Columbia Center on Sustainable Investment Staff Publications

The Columbia Center on Sustainable Investment has produced this conference report on CCSI’s Conference on Climate Change and Sustainable Investment in Natural Resources: From Consensus to Action. A shorter outcome document, which was disseminated at COP22, is also available. These documents summarize the discussions at the eleventh annual Columbia International Investment Conference, which took place on November 2-3, 2016, at Columbia University. The Conference offered a high-level opportunity to discuss how countries can reduce their greenhouse gas emissions in accordance with the Paris Agreement, while also advancing the Sustainable Development Goals, and in particular the important implications for the …

Oil Under Troubled Waters?: Some Legal Aspects Of The Boundary Dispute Between Malawi And Tanzania Over Lake Malawi, Tiyanjana Maluwa

Michigan Journal of International Law

This article examines the legal aspects of the respective claims by the two claimants to the northeastern stretches of the lake: to the eastern shoreline by Malawi and to the median line by Tanzania. Maluwa proceeds as follows. First, the Article sketches out the historical and political background of the dispute and examines some preliminary legal issues in Part I. Part II discusses the legal significance of boundaries, state succession to boundary treaties, and the relevance of post-colonial African state practice in this respect. A central aspect of this practice is the adoption by African states of the principle of …

Land Deal Dilemmas: Grievances, Human Rights, And Investor Protections, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Land-based investments can create significant grievances for local individuals or communities, and host governments seeking to address those grievances must navigate a complicated landscape of legal obligations and pragmatic considerations. This report, funded by UK aid from the Department for International Development, focuses on practical solutions for governments confronting grievances that arise from large-scale investments in agricultural or forestry projects.

The report considers such solutions in the context of governments’ legal obligations, particularly those imposed by international investment law, international human rights law, and investor-state contracts. Understanding the implications of this diverse range of legal obligations is particularly important in …

Guide To Land Contracts: Agricultural Projects, International Senior Lawyers Project, Kaitlin Y. Cordes, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Agricultural investment contracts can be complex, with complicated provisions that are difficult to understand. This Guide provides explanations for a range of common provisions, and includes a Glossary of legal and technical terms. It assists non-lawyers in better understanding agricultural investment contracts, such as those available on the Open Land Contracts repository.

The Guide was prepared by International Senior Lawyers Project staff and volunteers in collaboration with the Columbia Center on Sustainable Investment.

Transparency In Land-Based Investment: Key Questions And Next Steps, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Large-scale investments in agriculture and forestry are often shrouded in secrecy. In many cases, they are negotiated without the involvement of affected communities, approved through opaque decision-making procedures, and governed by legal agreements that are difficult both to access and to understand. This systemic lack of transparency impedes accountability and exacerbates ongoing disagreements about the real costs and benefits for investors, host countries, and their citizens.

Jointly authored by CCSI and the Open Contracting Partnership, this briefing note examines why contract disclosure and a contracting process that is open, accessible, and inclusive are important; what such transparency entails; and how …

Land Deals And The Law: Grievances, Human Rights, And Investor Protections, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Land-based investments can create significant grievances for local individuals or communities, and host governments seeking to address those grievances must navigate a complicated landscape of legal obligations and pragmatic considerations. This briefing note, funded by UK aid from the Department for International Development, focuses on practical solutions for governments confronting grievances that arise from large-scale investments in agricultural or forestry projects. It accompanies a more in depth report on similar issues, entitled "Land Deal Dilemmas: Grievances, Human rights, and Investor Protections."

The briefing note considers such solutions in the context of governments’ legal obligations, particularly those imposed by international investment …

Making Agricultural Investments Work For Land Users & Communities, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Earlier this year, Liberian President Ellen Johnson Sirleaf made an unexpected commitment related to foreign investment in land and community land rights. In a meeting with communities who had raised concerns regarding a British company’s attempts to expand its palm oil production onto their customary land, the President effectively told those communities that they would have the right to say yes or no to further expansion, noting that the company could expand only with the affected communities’ approval.

An Unfinished Joruney: Arctic Indigenous Rights, Lands, And Jurisdiction?, Tony Penikett

Seattle University Law Review

The indigenous rights movement has been defined as a struggle for land and jurisdiction. Over the last forty years, American and Canadian governments made much progress on the land question in the Arctic and sub-Arctic; however, from an irrational fear of the unknown, politicians in Washington, D.C. and Ottawa have effectively blocked the pathways to aboriginal jurisdiction or self-government. During the late-twentieth century in the Yukon, Northwest Territories, and Nunavut, as well as in Nisga’a territory, indigenous governments negotiated local government powers, but continent-wide progress on the question of indigenous jurisdiction has stalled. This Article considers the formation and implementation …

Toward Win-Win Sustainable Development, Linda Moon

Columbia Center on Sustainable Investment Staff Publications

An interview with Lisa Sachs, Director of the Columbia Center on Sustainable Investment.

Agenda: A Life Of Contributions For All Time: Symposium In Honor Of David H. Getches, University Of Colorado Boulder. School Of Law, University Of Colorado Law Review

A Life of Contributions for All Time: Symposium in Honor of David H. Getches (April 26-27)

On April 26-27, 2012, Colorado Law honored David H. Getches with a symposium to celebrate his life and legacy of trailblazing scholarship. “A Life of Contributions for All Time” featured a keynote address by Distinguished Professor Charles Wilkinson entitled, “Hero for the People, Hero for the Land and Water: Reflections on the Enduring Contributions of David Getches.” Top scholars in the fields of natural resources, water, and American Indian law reflected on Dean Getches’ contributions and their own insights into these fields, including Professor John Leshy, John Echohawk, Professor Carole Goldberg, Professor Joe Sax, Professor Rebecca Tsosie, Justice Greg Hobbs, …

Clearing The Path For Land Rights, One Road Block At A Time: How Peru’S Indigenous Population Can Assert Their Land Rights Against Peru’S Government, Alex Meyers

Global Business Law Review

To the indigenous people of Peru, a strong relationship exists between land and livelihood. They depend on their land for the food they eat, the water they drink, and the resources they use to build their shelter. It follows that a threat to their property rights also threatens their survival; this past year, they have proven that they are prepared to defend their property rights with their lives. This Note shows that between the legal systems of Peru, the Organization of American States (OAS), and the United Nations (UN), Peru’s indigenous people should pursue their claim against Peru’s government in …

An Analysis Of Article 28 Of The United Nations Declaration On The Rights Of Indigenous Peoples, And Proposals For Reform, David Fautsch

Michigan Journal of International Law

The purpose of this Note is two-fold: first, to demonstrate why the standards set out in Article 28 require further clarification, and second, to propose reforms (both inside and outside of the United Nations framework) that might benefit indigenous peoples claiming land rights.

Public International Law And Its Territorial Imperative, Dino Kritsiotis

Michigan Journal of International Law

Territory, or the concept of territory, thus asserts itself throughout the discipline of public international law, and its influences can be felt either through direct means or discrete.

Bordering Capabilities Versus Borders: Implications For National Borders, Saskia Sassen

Michigan Journal of International Law

A core argument of this Essay is that the capability to make borderings has itself switched organizing logics: from institutionalizing the perimeter of a territory to multiplying transversal borderings cutting across that perimeter. This switch is partly linked to the types of scalar shifts in the operational space of a growing number of systems. To the more economic systems already mentioned above, let me add such diverse instances as the policing of the illegal drug trade, the war on terror, the judicial and political struggle to protect human rights, and the environmental effort to reorganize transnational economic sectors, including the …

Condominum Arrangements In International Practice: Reviving An Abandoned Concept Of Boundary Dispute Resolution, Joel H. Samuels

Michigan Journal of International Law

This Article attempts to revive the consideration of condominium as a possible solution to contemporary boundary disputes. Part I describes specific historic instances of condominia and derives relevant lessons from each instance. Part II notes that some critics of condominium have in fact confused condominium with other forms of joint dominion over territory. This Part proceeds, therefore, to distinguish condominium from these other arrangements. Next, Part III discusses how experiences with common property regimes over common resources (such as water supplies) might inform the contemporary use of condominium. Finally, informed by lessons articulated in Parts I through III, Part IV …