1. Adequate and effective regulation of corporate and financial entities remains a crucial issue in order to address land grabbing by EU actors. As of their human rights obligations, the EU and its MS have to, in accordance with their respective competences, protect people from abuses by third parties. The extraterritorial human rights obligations of the EU and MS place obligations on them to establish the necessary regulatory mechanisms to ensure that private corporations, including transnational corporations, and other non-state actors that they are in a position to regulate, do not impair the enjoyment of human rights in other countries, including in the context of land grabbing. Failure to do so represents a breach of human rights obligations. In order to ensure accountability, victims have to have full access to adequate and effective remedy mechanisms independent of where human rights abuses have occurred. Experience shows that corporate social responsibility and voluntary regulation schemes fail to prevent land grabbing, do not protect people from human rights abuses and do not ensure accountability. We recommend the following actions to the EU and EU MS:
(a) Given the non-transparency, which surrounds many land deal processes, the first step to holding investors accountable is for the EU to proactively track and monitor land deals involving EU actors. This could happen in form of a registry at EU level of all EU actors involved in land deals abroad. Mandatory disclosure rules should require these EU actors to provide all information relevant to assess human rights risks and impacts in relation to their business activities, and to report on their subsidiaries, wherever incorporated and operating, and their business relationships.
(b) EU delegations and embassies of EU MS should proactively monitor and report on the activities of EU companies in the respective countries, particularly where there are indications that these are involved in human rights abuses, as well as monitor compliance of EU companies with national law as well as human rights standards, including the Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests (contributing to overall application of these Guidelines, see recommendation 2.2.d). The monitoring reports by EU delegations and EU MS embassies should be provided to all relevant EU institutions, including the EP (particularly DROI and AFET), the EEAS and the European Commission (e.g. DG Trade).
(c) EU MS should develop policies and frameworks for the conduct of
corporations over which they have jurisdiction (adapting existing regulations or introducing new regulations) to effectively regulate EU corporate and financial actors, through a process of dialogue with individuals and communities affected by human rights abuses, taking into account their experiences and needs. Civil, administrative and criminal regulation should clearly define the duties of corporations and financial actors, including rules on impact assessments, responsibility of due diligence and victim centred criteria for the determination of liability, and contain clear provisions on legal accountability by these actors for human rights abuses and crimes. The frameworks for conduct should impose a
legal duty on parent companies to exercise due diligence by controlling their subsidiaries to prevent HR abuses and make it a criminal offence for companies to contribute to human rights abuses abroad.
(d) The EU should take steps within its competence to develop common standards at the EU level for corporate regulation by MS in line with recommendation 3.1 (c). The proposal by the European Commission to add a forum necessitates provision to the Brussels I Regulation should be re- introduced so that it becomes mandatory for MS courts to exercise jurisdiction in situations where no other forum ensuring the right to a fair trial exists and there is a sufficient link with the MS concerned.
(e) EU MS have to ensure victims' access to effective judicial remedies, including by assuming jurisdiction in cases of corporate human rights abuses committed by EU-based actors and removing obstacles for people affected abroad to bring a case in the home state of the business or the state in which controlling companies are domiciled and/or develop activities, based on the Brussels Regulation. MS courts should, in situations where the legal protection offered in the state where the harm occurred is insufficient, apply the law of the country in which the case is heard. They should also allow for collective actions, including class actions and public interest litigation.
(f) The current process of an own-initiative report by the European Parliament on “Corporate liability for serious human rights abuses in third countries” which is produced in the Committee on Foreign Affairs (AFET) should be used in order to advance in this regard, remembering that all human rights abuses and violations have to be tackled by effective accountability mechanisms.
(g) EU MS and the European Commission should explore options for providing financial support to individuals from abroad to bring claims to EU MS courts.
(h) The EU and MS should consider the creation of an EU-wide independent complaint mechanism for individuals and communities whose rights have been negatively affected by EU actors, which can complement judicial remedies at MS level.
2. Where the EU and EU MS are directly involved in land grabbing, they also have to comply with their obligation to respect human rights. This is the case, among others, where land grabs take place with the involvement of development finance institutions (DFIs), public pension funds and public-private partnerships (PPPs). (a) In these cases, the EU and EU MS have to ensure public scrutiny of the
involvement of public and state-related entities in land deals, systematically carrying out independent ex ante and ex post human-rights impacts assessments of these deals and withdraw from investment projects/land deals where substantial human rights risks have been identified or violations have occurred. In the latter case, states must provide for effective remedy mechanisms.
(b) While the EU is directly responsible for ensuring that EU development finance and public-private partnerships do not contribute to human rights abuses, MS carry a responsibility to ensure that the EU acts accordingly. (c) Parliaments of MS and, in the case of European development finance, also
the EP, have to be able to effectively monitor the activities of DFIs, for instance through a parliamentary commission that has access to all the business records of DFIs and that meets regularly.
(d) DFIs should establish accessible complaint mechanisms for victims of human rights abuses and violations, which ensure that such complaints are investigated independently and ensure ways of effective remedy.
(e) The EU and its Member States should withdraw any form of support (including financial and diplomatic) from companies involved in human rights abuses and use their influence to prevent such.