Since 2008, civil society groups and transnational networks have drawn attention to one discrete source of conflict that is on the rise in the field of resource scarcity and transnational agro investment, although knowledge on exact numbers remains contested. In practice, this form of investment revolves around the acquisition of large areas of land on a doubtful legal basis, often labeled ‘land grab’. Investors can be private but are often made up of states. Examples thereof are China, India, Saudi Arabia and other states of the Persian Gulf region, but also European and American investment funds are particularly active. Although these types of acquisitions occur often in the global South, it also takes place in other parts of the world (such as Chinese land acquisitions in the outback of Australia). As such, it has become a global phenomenon of fast flowing streams of investments and agricultural goods that is shifting well established power structures. Since the contracts by which land deals are determined are formally legal, it needs to be examined how the current regulatory multilevel framework and institutional landscape accommodate this growing phenomenon.
The Rise of Green Land Grabbing
Certainly, the acquisition of (foreign) land has a long history, but lately (foreign) investors are driven primarily by two reasons which are at least indirectly related to climate change. The first reason is food security; countries that foresee reduced available land for food production due to climate change and the rapid growth of their population, try to avoid future food shortage and high food prices by producing food in foreign countries and sending the harvest back to the home state. The second reason is energy security; most developed countries have set targets in their energy policies in an attempt to cap greenhouse gas emissions and other climate change related issues. Such targets, for instance, lead to a greater emphasis on growing crops for biofuels and on afforestation projects.[i]
The long-term control of large patches of land outside a country’s domestic jurisdiction (often contracts are signed for the duration of 99 years) has become essential to supply food and energy for the survival of the population back home. Most transactions are effectuated between foreign investment funds (often linked to foreign governments) and national governments (who control and own the land in a formal sense). Central governments of the host country are often eager to welcome investments, while there is no clear indication of its long-term effects on, for instance, changes in land use. A paradox is apparent in the position of the host government: it acts as a sovereign state by closing the land deal, while at the same time limiting its territorial authority.[ii] According to Sassen, land is shifting from sovereign national territory to a market commodity causing a transformation of the state where authority over land is scattered.[iii]
Human rights violated
Intensified land use for these purposes not only impair immediate food and water availability at the local level, but also reduce the local community’s resilience for future climate change (hence reducing their adaptive capacities). It also has serious socio-economic implications for smallholder agriculture and can ultimately lead to the displacement of local and indigenous people.[iv] Land has a particularly crucial meaning for indigenous people, as they highly depend on it. Land is more than a commodity and can play an important role in religious and cultural systems. Attachment to land therefore is very strong, as it is usually something that determines their lives and also constitutes part of their identity. This multifunctional purpose of land is often not recognized by the central government or other governance structures.
UN SPECIAL RAPPORTEUR ON FOOD SECURITY
On 26 March 2008, the UN Human Rights Council approved the President’s proposal to appoint Prof. Olivier De Schutter the UN Special Rapporteur on the Right to Food. Prof. De Schutter thus succeeds to Prof. Jean Ziegler, who had been holding this mandate since 2000. De Schutter is a Professor at the Catholic University of Louvain and at the College of Europe (Natolin). He is also a Member of the Global Law School Faculty at New York University and is Visiting Professor at Columbia University.
The Special Rapporteur is expected to report both to the UN General Assembly (Third Committee) and to the Human Rights Council on the fulfilment of the mandate. Contributions by all the stakeholders on the different issues mentioned above are welcomed. In addition to addressing structural issues threatening the full enjoyment of the right to food, the Special Rapporteur may send communications to governments, called letters of allegation, in urgent cases brought to his attention by reliable sources. The terms of the resolution state the expectations of the Special Rapporteur in the mandate on 26 September 2007 (A/HRC/6/L.5/Rev.1). A fuller description of the mandate of the Special Rapporteur can be found on the relevant page of the website of the Office of the High Commissioner for Human Rights.
The subsequent displacement of these people is extremely sensitive from the human rights perspective. For example, it has been reported that more than 22,500 people have been evicted from their land in Uganda to make way for the UK based company New Forest Company in order to plant trees.[v] Similarly, in the Gambella Regional State (South West Ethiopia, bordering Southern Sudan) most of the fertile land in the regional state is earmarked for a lease to (foreign) investors for a period extending over several decades. So far, hundreds of thousands of hectares of farmland have been transferred to Indian, Chinese and Saudi Arabian investors who already have displaced local population and ignited conflicts in the area.[vi] The right of all peoples to self-determination and the right that people may not be deprived of their own means of subsistence, the right to an adequate standard of living (including access to food and water) are clearly at issue here.
Emerging legal framework
The growing practice of agro investment prompts some pertinent legal questions concerning property rights, environmental norms, human rights and procedural rights such as access to information and justice and participation rights. However, legal issues with respect to land use change within the bigger climate change context have only recently attracted the attention of environmental, human rights and investment lawyers and thus far legal analysis on the complex phenomenon of changing land use is scarce.[vii]. In general five sources of law apply to such foreign agro investment:
(a) National law of the Host State;
(b) Customary law of local and indigenous people;
(c) International law (treaty and customary law, e.g. investment law);
(d) Social responsibility norms and codes of conducts; and
(e) National law of the investor’s Home State.
However, this complex multilevel system of legal norms is not evenly distributed. It is evident that investors rely on legal rules – of international and bilateral investment trade law – to make the acquisition of patches of land contractual legal.[viii] In general though it can be noted that while the investor’s interests are enforceable in court, the interests of the local and indigenous people are merely protected by mostly ‘soft norms’ – e.g. the principle of free prior and informed consent – which in practice are extremely difficult to enforce. Moreover, there is an evident incentive for poor states to supplement their income by (transnational) agro investment, while often an institutional framework to monitor these investments is missing.
To counter this disequilibrium and ensure compliance with legal norms, regulatory (e.g. environmental law) scholarship has concentrated in expanding the regulatory toolbox beyond traditional command and control regulation. This has, for instance, resulted – albeit with varying degrees of success – in the employment of self-regulatory instruments complementing and sometimes replacing more traditional instruments, and hence also in the mobilization of non-state actors in support of regulation.
More recently, Codes of Conduct for so-called ‘responsible agriculture investment’ have been added to the existing body of soft norms regulating foreign agro investment, such as the UN Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests.[ix] These instruments seek to integrate different self-regulatory norms on sustainability.[x] Institutions like the World Bank, the FAO Committee on World Food Security and the Committee on World Food Security (CFS) have been active in this regard.
It is clear that (foreign) agro investment could have significant benefits for the host state, such as an increase in food production, technology transfer and employment opportunities. The idea behind the Codes of Conduct is thus bringing multiple stakeholders involved in transnational land transactions together, with an emphasis on cooperation. However, it is doubtful whether these soft norms will be easily applied in practice. Often legal and procedural mechanisms guaranteeing access to information, participation and justice are lacking in target countries, while local governments are often not strong enough to resist investors or the central government. Since especially indigenous rights are not easily represented in law, NGOs can play a crucial role in the protection of these rights.
Considering the complexity of the issue of land grabbing, its multiple actors involved (investors, central and local government, different stakeholders, local and indigenous people, international institutions) and its different settings, careful examination is needed of how the particular land acquisition is framed and what actors, interests and legal norms are involved.