Since the endorsement of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forestry by the Committee on World Food Security in 2012, governments, the United Nations, activists, and lawyers have struggled to understand exactly what they require—if anything. On one level the question is simple and straightforward. Not only are the Guidelines voluntary on their face but the Committee on World Food Security (CFS) member states took pains to clarify that by voluntary they mean voluntary, i.e. not mandatory. One would think the matter settled.
When examined more closely, the matter can be seen as a bit more complicated. For one, the Guidelines clearly state that they are to be understood as consistent with international law and human rights standards. While not binding in themselves, the Guidelines embody many of those laws and standards, which are binding.
On one level, not every CFS member endorsing the Guidelines has joined all of the agreements that the Guidelines reflect, but many have. At a minimum, states that are parties to relevant agreements risk challenges that might arise from noncompliance with any relevant treaty obligation reflected in the Guidelines. Also, as a practical matter, states that act inconsistently with the Guidelines could face adverse publicity.
Yet from the standpoint of practicing lawyers, the Guidelines raise somewhat different considerations. Even if they do not require states to change their laws, should lawyers advise clients to follow them? Are private organizations and businesses obligated to adhere to the Guidelines?
This is one of the questions I and my co-authors addressed in the recent book Responsible Governance of Tenure and the Law: A Guide for Lawyers and Other Legal Service Providers published by FAO in May 2016.
While the Guidelines themselves may be a voluntary instrument, many their elements involve matters of obligation for lawyers. Specifically, in many jurisdictions lawyers have professional responsibility obligations to uphold the rule of law. Not only do the Guidelines affirm the rule of law, but many elements of the Guidelines embody its core elements. Examples include ensuring access to justice and effective means of dispute resolution, access to effective remedies, transparency in legal rules and tenure transactions, and fairness in consultation with affected communities. The Guidelines call for professional associations to “develop, publicize and monitor the implementation of high levels of ethical behavior” and for professionals to adhere to those standards or face disciplinary measures.
The International Bar Association reached similar conclusions in its recently released Practical Guidance on Human Rights and Business for Business Lawyers. Recognizing that the UN Guiding Principles on Business and Human Rights are a voluntary instrument, the IBA found that
“Much of its content was already legally required before the UNGPs were endorsed; that is, the domestic law of many States had already required business to respect human rights in numerous areas, such as antidiscrimination, workers’ rights, workplace and public health and safety, and privacy. And […], the content of the UNGPs have in fact become increasingly reflected in legislation and regulation, in commercial and financial transactions and agreements, and in the advocacy of civil society.”
The development of instruments such as the Guidelines or UN Guiding Principles provide needed clarity on these crucial subjects. Lawyers should avoid mistaking their voluntary nature with grounds to discount their normative weight.