E/C.12/GC/26 persons and groups concerned.38 States parties should also recognize and protect communal dimensions of tenure, particularly in relation to Indigenous Peoples, peasants and other traditional communities who have a material and spiritual relationship with their traditional lands that is indispensable to their existence, well-being and full development. That includes the collective rights of access to, use of and control over lands, territories and resources that they have traditionally owned, occupied or otherwise used or acquired.39 Legal frameworks should therefore avoid the increased concentration of land ownership and privileges within land tenure systems, including when the motivation to change the legal framework stems from international agreements.40 States parties should develop laws and policies to guarantee that land-based investments are made in a responsible manner. That requires the early participation of all affected parties and the fair regulation of transfer processes. In all land-related investment processes, affected persons or groups shall have access to complaint mechanisms that allow them to challenge decisions of local governments, investment boards or other relevant parties before the start of the investment and up to the payment of fair compensation. Human rights impact assessments shall be conducted to identify potential harm and options to mitigate it. Principles for responsible investors and investment need to be determined by law and shall be enforceable. Responsible investments shall respect legitimate tenure rights and shall not harm human rights and legitimate policy objectives such as food security and the sustainable use of natural resources. States parties should provide transparent rules on the scale, scope and nature of allowable transactions in tenure rights and should define what constitutes largescale transactions in tenure rights in their national contexts.41 28. 29. States parties should have safeguards and policies in place to protect legitimate tenure rights from risks that could derive from large-scale transactions in tenure rights. Large-scale land investments risk violating rights under the Covenant because they often affect many smallholders, whose informal land use titles are often not recognized. 42 Such safeguards could include ceilings on permissible land transactions and the requirement that transfers exceeding a certain level should be approved at the highest level of Government or by the national parliament. States should consider the promotion of a range of production and investment models that do not result in large-scale displacements from land, including models encouraging partnerships with local tenure rights holders. 30. The obligation to protect entails a positive duty to take legislative and other measures to provide clear standards for non-State actors such as business entities and private investors, especially in the context of large-scale land acquisitions and leases at home and abroad.43 States parties shall adopt a legal framework requiring business entities to exercise human rights due diligence44 in order to identify, prevent and mitigate the negative impact on rights enshrined in the Covenant caused by their decisions and operations. 38 39 40 41 42 43 44 GE.23-00043 Committee on Economic, Social and Cultural Rights, general comment No. 4 (1991), para. 8 (a). Committee on Economic, Social and Cultural Rights, general comment No. 21 (2009), para. 36. See also Inter-American Court of Human Rights, Xákmok Kásek Indigenous Community v. Paraguay, Judgment, 24 August 2010, para. 86, and Sawhoyamaxa Indigenous Community v. Paraguay, para. 118; African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, paras. 252– 268; and African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v. Republic of Kenya, paras. 195–201. African Commission on Human and Peoples’ Rights, “State reporting guidelines and principles on articles 21 and 24 of the African Charter relating to extractive industries, human rights and the environment”, p. 25, para. 18. African Union, African Development Bank and Economic Commission for Africa, “Guiding principles on large scale land-based investments in Africa” (Addis Ababa, 2014). Ibid., chap. 2. African Commission on Human and Peoples’ Rights, Social and Economic Rights Action Centre and the Center for Economic and Social Rights v. Nigeria, Decision, thirtieth ordinary session, 13–27 October 2001. African Union, African Development Bank and Economic Commission for Africa, “Guiding principles on large scale land based investments in Africa”. 9