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Law and Development Review

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The Law and Development Review (LDR) aims to publish top-quality articles on a range of law and development issues as broadly conceived. Since its first publication in 2008, the LDR is the only major international academic journal to address the impact of both domestic and international legal orders on economic and social development. The journal is distinguished from other journals in law and economics and law and society in that its primary focus is the development aspect of international and domestic legal orders. The unprecedented diversity and quality of its editorial board, as well as its authors, selected from all parts of the developed and developing worlds, creates a truly global forum where voices from both the developing world and the developed world can meet. The Journal aims to help facilitate future global negotiations concerning the economic development of developing countries and sets out future directions for law and development studies. The LDR will be of interest well beyond academia to reach policy makers, government agencies, NGOs, international bodies, and corporations focused on the legal impact of economic development. The articles are selected by peer-reviewed process. The Journal publishes multiple issues a year, normally one regular issue for which articles are chosen from unsolicited submissions, and one or more special issues on specific theme for which articles are selected from invited submissions. Please note that the articles selected for publication are made available online through ahead of print cache as soon as peer-review process is completed, even before the corresponding issue is formally published. Individual readers may access the articles online free of charge, without the need of paid subscription. The LDR is sponsored and managed by the Law and Development Institute. For more information please visit the Institute‘s website: www.lawanddevelopment.net. e-ISSN 1943-3867 All information regarding notes for contributors, subscriptions, Open Access, back volumes and orders is available online at http://www.degruyter.com/ldr. RESPONSIBLE EDITOR Yong-Shik Lee, Williamson Building-4.16, School of Law, The University of

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The Law and Development Review

2014 | Volume 7 | Issue 2

Contents Editorial Andreas Neef Law and Development Implications of Transnational Land Acquisitions: Introduction 187

Articles Liz Alden Wily The Law and Land Grabbing: Friend or Foe?

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Salim Farrar Arab Acquisitions in Sub-Saharan Africa: Partners in Development? 243 Emel Zerrouk and Andreas Neef The Media Discourse of Land Grabbing and Resistance During Myanmar’s Legal Reformation: The Monywa Copper Mine 275 Perry S. Bechky International Adjudication of Land Disputes: For Development and Transnationalism 313 Uche Ewelukwa Ofodile Managing Foreign Investment in Agricultural Land in Africa: The Role of Bilateral Investment Treaties and International Investment Contracts 329 Lorenza Paoloni and Antonio Onorati Regulations of Large-Scale Acquisitions of Land: The Case of the Voluntary Guidelines on the Responsible Governance of Land, Fisheries and Forests 369


2014 | Volume 7 | Issue 2

The Law and Development Review

Fantu F. Mulleta, Pierre Merlet and Johan Bastiaensen Questioning the “Regulatory Approach” to Large-Scale Agricultural Land Transfers in Ethiopia: A Legal Pluralistic Perspective 401 Michael Brüntrup, Waltina Scheumann, Axel Berger, Lidija Christmann and Clara Brandi What Can Be Expected from International Frameworks to Regulate Large-Scale Land and Water Acquisitions in Sub-Saharan Africa? 433


The Law and Development Review 2014; 7(2): 187–205

Editorial Andreas Neef*

Law and Development Implications of Transnational Land Acquisitions: Introduction Abstract: This introductory article to the 2014 Special Issue of Law and Development Review provides a brief overview of the scope, actors, discourses and impacts of the global land and resource rush, a phenomenon that has been triggered by the confluence of the financial, food and fuel crises in the late 2000s. It situates transnational land acquisitions in the law–development– ethics–politics nexus and introduces eight articles that are based on a selection of papers presented at the 2013 Law and Development Conference “Legal and Development Implications of International Land Acquisitions”, held from 30 to 31 May 2013 at Kyoto University, Japan. Keywords: large-scale land acquisitions, land grabbing, development ethics, development discourse, foreign investors DOI 10.1515/ldr-2014-0020

1 Introduction The confluence of three major crises – financial, food and fuel – in the years 2007 and 2008 has triggered a new wave of transnational land acquisitions and leases, primarily in countries in the Global South that are rich in natural resources and poor in governance mechanisms. While sub-Saharan Africa and Southeast Asia are the major hotspots of the global land and resource rush, countries in Latin America, Central Asia, the Pacific and Eastern Europe and even some Organization for Economic Co-operation and Development countries, most notably Australia and New Zealand, have also been targeted. A number of

*Corresponding author: Andreas Neef, Development Studies, School of Social Sciences, Faculty of Arts, University of Auckland, Auckland 1142, New Zealand, E-mail: [email protected]


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scholars have compared the current land and resource rush to previous global land grabs, but have offered differing conclusions regarding its long-term prospects. While some scholars maintain that the current land rush is unprecedented in both scale and speed and will have long-lasting and devastating social and ecological consequences, others contend that it is just another land and resource boom that will eventually fade away, as a large share of the investments is bound to fail economically or will be resisted locally, with support from growing international advocacy movements.1 There is also a continuing debate whether at least some of these large-scale land acquisitions can provide tangible and positive development outcomes for affected local communities2 or whether the global land rush should be categorically condemned as an unacceptable manifestation of “neo-colonialism” and “accumulation by dispossession”, as stressed by Via Campesina, GRAIN, Global Witness and a number of other advocacy groups.3 Associated with this debate is the question whether largescale transnational land deals can always be categorized as “land grabs”, implying that they are either outright illegal under national and/or international legal frameworks (e.g. when they involve the violent displacement of formal right-holders), largely illegitimate (e.g. when they infringe on customary land rights not acknowledged by the state) or at least unethical (e.g. when investments formally follow the rules, but still have adverse social, cultural or economic impacts on local actors). The International Land Coalition defines large-scale land grabbing as “acquisitions or concessions that are one or more of the following: i. in violation of human rights, particularly the equal rights of women; ii. not based on free, prior and informed consent of the affected land-users; iii. not based on a thorough assessment, or are in disregard of social, economic and environmental impacts, including the way they are gendered;

1 L. Alden Wily, Looking Back to See Forward: The Legal Niceties of Land Theft in Land Rushes, 39 The Journal of Peasant Studies, no. 3–4 (2012), 751–775. 2 See, e.g., J. Von Braun and R. Meinzen-Dick, “Land Grabbing” by Foreign Investors in Developing Countries: Risks and Opportunities. IFPRI Policy Brief 13 (Washington, DC: International Food Policy Research Institute, 2009); World Bank, Rising Global Interest in Farmland: Can It Yield Sustainable and Equitable Benefits? (Washington, DC: World Bank, 2011). 3 See, e.g., R. Bush, J. Bujra and G. Littlejohn, Editorial: The Accumulation Of Dispossession, 38 Review of African Political Economy, no. 128 (2011), 187–192; D. Harvey, The ‘New Imperialism’: Accumulation by Dispossession, 40 Socialist Register (2004), 63–87; F. Magdoff, Twenty-FirstCentury Land Grabs: Accumulation by Agricultural Dispossession. Global Research – Centre for Research on Globalization (2013), available at: http://www.globalresearch.ca/twenty-first-century-land-grabs-accumulation-by-agricultural-dispossession/5356768, accessed 23 April 2014.


Law and Development Implications of Transnational Land Acquisitions

iv. v.

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not based on transparent contracts that specify clear and binding commitments about activities, employment and benefits sharing, and; not based on effective democratic planning, independent oversight and meaningful participation.”4

Although I fully endorse the above definition of large-scale land grabbing, in this introductory article to the special issue the more neutral notion of “transnational land acquisitions” is used, which also includes long-term lease arrangements.

2 The new wave of transnational land acquisitions: scope, actors, discourses and impacts 2.1 Scope of the current land and resource rush The current land and resource rush is a complex, multifaceted phenomenon, and attempts to quantify its global scope appear as elusive as they are deemed necessary to scrutinize investors’ conduct and impact. The World Bank estimated in a major 2011 publication that in the year 2009 alone deals covering about 60 million ha were announced, while data collected by the International Land Coalition (ILC) and publicized in 2011 indicated that close to 80 million ha of land had been the object of negotiations with foreign investors over the first decade of the twenty-first century.5 In September 2011, the British-based international non-governmental organization (NGO) Oxfam presented a briefing paper – referring to preliminary research from the Land Matrix Partnership – that asserted that “as many as 227 million hectares of land – an area the size of Western Europe – has been sold or leased since 2001, mostly to international investors”,6 with most of these deals allegedly concluded in the years 2009–2010. 4 International Land Coalition, Tirana Declaration, 2011, available at: http://www.commercialpressuresonland.org/sites/default/files/Tirana_Declaration_ILC_2011_ENG.pdf, accessed 17 October 2014. 5 M. Kugelman, “Introduction”, in M. Kugelman and S. L. Levenstein (eds.), The Global Farms Race: Land Grabs, Agricultural Investment, and the Scramble for Food Security (Chicago: Island Press, 2013), pp. 1–20. 6 Oxfam, Land and Power: The Growing Scandal Surrounding the New Wave of Investments in Land, 151 Oxfam Briefing Paper (2011), 2, available at: http://www.oxfam.org/sites/www.oxfam. org/files/bp151-land-power-rights-acquisitions-220911-en.pdf, accessed 15 July 2014.


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Yet recent data released by the Land Matrix Partnership in January 2014 substantially downsized the scope of the global land rush, with “concluded deals amount[ing] to a total of 35.7 million hectare[s] of area under contract (with announced intentions of 58.8 million hectare[s])”.7 According to the same source, intended deals cover an area of 14.1 million ha, while failed deals have been recorded at over 7.1 million ha.8 The United States top the Land Matrix’ list of investor countries, with more than double the size acquired or leased than Malaysia which follows in second place (Table 1). Table 1: Top ten investor countries and top ten target countries in the global land rush (land acquisitions, leases and concessions concluded between January 2000 and January 2014) Investor Countries 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

United States of America Malaysia United Arab Emirates United Kingdom India Singapore Netherlands Saudi Arabia Brazil China/Hong Kong

ha 7,095,352 3,349,571 2,819,223 2,296,669 1,990,223 1,880,755 1,684,896 1,573,218 1,368,857 1,342,034

Target Countries 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Papua New Guinea Indonesia South Sudan DR Congo Mozambique Brazil Ukraine Liberia Sierra Leone Sudan

ha 3,799,169 3,549,462 3,491,313 2,717,358 2,167,882 1,811,236 1,600,179 1,361,213 1,191,013 1,181,105

Source: Data from Land Matrix Partnership, February 2014.

The list of top ten investor countries provides evidence of the diversity of the land grab phenomenon, with emerging economies (Brazil and India) and Gulf countries playing a prominent role alongside former colonial powers, such as the UK and the Netherlands. Two Asia-Pacific countries (Papua New Guinea and Indonesia) top the list of the ten major target countries, which includes six countries from sub-Saharan Africa. Brazil is the only target country in the top ten that also features in the list of top ten investor countries, implying that countries can be both drivers and targets of large-scale land acquisitions.

7 Land Matrix Partnership, Land Matrix Newsletter January 2014 (updated 9 February 2014), p. 2, available at http://www.landmatrix.org/media/filer_public/74/1e/741e67d5-cb24-4db6aadb-756fb2bd5f88/lm_newsletter_n2_update_feb_2014.pdf, accessed 17 October 2014. 8 Ibid., p. 3.



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While the statistics around the global land rush remain contentious and need further scrutiny,9 there is a general consensus among scholars, policy makers and development practitioners that the land rush is real, global in scope and has far reaching implications for rural populations and landscapes.

2.2 Actors driving the global land and resource rush The major actors involved in transnational land acquisitions and leases can be broadly categorized into (1) investors, (2) recipients and (3) intermediaries. On the investor side, national governments – notably in the Gulf States, in East Asian countries and the BRICS states – play a major role in driving investments in land and other natural resources in large parts of the Global South. One example is the trilateral agrarian cooperation programme PROSAVANA, led by the Brazilian government, the Japanese Ministry of Foreign Affairs, the Japan International Cooperation Agency, the Mozambique government and a number of agricultural corporations, which allegedly will lead to the dispossession of thousands of smallholder farmers in northern Mozambique.10 In many cases, national governments invest in overseas land through Sovereign Wealth Funds (SWFs), such as Qatar’s Hassad Food, the agricultural subsidiary of the Qatar Investment Authority.11 The first decade of the twenty-first century saw the establishment of 29 new SWFs, exceeding the number of newly established SWFs in the entire second half of the last century.12 SWFs have thus become a major element in international finance, and their economic power and global outreach can be hardly underestimated, raising concerns among some of the 9 For a critique of land deal statistics, see, e.g., M. Edelman, Messy Hectares: Questions about the Epistemology of Land Grabbing Data, 40 The Journal of Peasant Studies, no. 3 (2013), 485–501; I. Scoones, R. Hall, S. Borras, B. White and W. Wolford, The Politics of Evidence: Methodologies for Understanding the Global Land Rush, 40 The Journal of Peasant Studies, no. 3 (2013), 469–483. 10 S. Funada-Classen, Analysis of the Discourse and Background of the ProSAVANA Programme in Mozambique – Focusing on Japanʼs Role, available at: http://farmlandgrab.org/uploads/ attachment/ProSavana%20Analysis%20based%20on%20Japanese%20source%20 (FUNADA2013).pdf, accessed 17 October 2014. 11 E. Woertz, “The Global Food Crisis and the Gulf’s Quest for Africa’s Agricultural Potential”, in T. Allan, M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook of Land and Water Grabs in Africa Foreign Direct Investment and Food and Water Security (London and New York: Routledge, 2013), p. 110. 12 From 1950 to 1999, 20 Sovereign Wealth Funds (SWFs) were established, according to G. L. Clark, A. D. Dixon and A. H. B. Monk, Sovereign Wealth Funds: Legitimacy, Governance and Global Power (Princeton, NJ and Oxford: Princeton University Press, 2013), p. 4.


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established Western economies and challenging the hegemonic power of the traditional Anglo-American financial institutions. While large transnational corporations have been among the most notorious investors in overseas land and natural resources for several years, small- and medium-sized biofuel firms are also quickly becoming major players in the global land rush, encouraged by recent mandatory biofuel policies in industrialized countries, mostly notably in the European Union and in the United States.13 Other types of investors include private equity and hedge funds. Prominent hedge fund managers, such as George Soros, Jim Rogers and Michael Burry, have substantially increased their positions in global farmland investments, which they consider as more tangible assets in an increasing volatile global financial system.14 Warren Buffet, CEO of the American multinational conglomerate holding company Berkshire Hathaway, has repeatedly expressed his preference for productive farmland over gold.15 International environmental NGOs have also purchased vast amounts of land, dubbed as the “great green land grab”, i.e. the appropriation of forestland and other natural resources for conservation purposes.16 Evolving international carbon markets, such as the global REDD þ initiative (Reduced Emissions from Deforestation and Forest Degradations), have attracted a number of reforestation companies and so-called carbon cowboys that aim at turning conservation forests and monoculture tree plantations into lucrative businesses under the guise of climate-saving investments in the green economy.17 Among the recipients (i.e. targets) of large-scale transnational land acquisitions are national governments and state agencies, often in the so-called leastdeveloped countries with weak or bad governance structures and a large share of poor, vulnerable and undernourished people. With a focus on the African 13 A. Ernsting, A New Look at Land-Grabs in the Global South Linked to EU Biomass Policies (May 2014), available at: http://www.biofuelwatch.org.uk/wp-content/uploads/A-new-look-atland-grabs-in-the-global-South-linked-to-EU-biomass-policies.pdf, accessed 17 October 2014. 14 F. Magdoff, Twenty-First-Century Land Grabs: Accumulation by Agricultural Dispossession. Global Research – Centre for Research on Globalization (2013), available online at http://www. globalresearch.ca/twenty-first-century-land-grabs-accumulation-by-agricultural-dispossession/ 5356768, accessed 23 April 2014; Z. Fillingham, Why investors such as Jim Rogers and George Soros are interested in Farmland. Geopolitical Monitor, 2013, available at: http://oilprice.com/ Finance/investing-and-trading-reports/Why-Investors-such-as-Jim-Rogers-and-George-Sorosare-Interested-in-Farmland.html, accessed 23 April 2014. 15 M. Fairbairn, ‘Like Gold with Yield’: Evolving Intersections between Farmland and Finance, 41 The Journal of Peasant Studies, no. 5 (2014), 777–795. 16 J. Fairhead, M. Leach and I. Scoones, Green Grabbing: A New Appropriation of Nature?, 39 The Journal of Peasant Studies, no. 2 (2012), 237–261. 17 B. Nerlich and N. Koteyko, Carbon Gold Rush and Carbon Cowboys: A New Chapter in Green Mythology?, 4 Environmental Communication, no. 1 (2010), 37–53; Ernsting (2014), supra note 13.



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continent, Bush et al. (2011) maintain that “[s]tates should exist to guarantee the protection of their citizens from foreign expropriation. Instead, for reasons of weakness or venality, or because the political class has direct interests in the outcomes, they often facilitate land deals which dispossess large swathes of their people.”18 Some governments may invite large-scale investors to overcome the lack of investment in rural areas and to exploit allegedly “underutilized” areas. Another motivation for national governments to encourage transnational land acquisitions is to make the rural landscape legally legible through a combination of territorialization and privatization.19 In some countries that have undergone a major decentralization process in recent years, such as Indonesia, regional governments at provincial or district level may be targeted by investors. Several African countries and small island nations in the Pacific have provided legal recognition of customary land rights through their constitutions and land legislations, often with chiefs as the holders of legal title and traditional councils as land administrators. Although the alienation of customary land tends to be restricted by law, traditional authorities oftentimes hold the legitimate power to negotiate with investors over leasehold terms.20 By contrast, local communities, that are also on the recipient side of investments and have to bear their consequences in the most direct sense, are rarely involved in negotiations over the use of their land and other natural resources that they often hold under communal management. Among the intermediaries – i.e. those actors that play a major role in promoting, brokering or financing transnational land acquisitions – feature international development banks and aid agencies that have promoted investor-friendly policies and legislative frameworks in many countries of the Global South. The World Bank’s lending arm – the International Finance Corporation – has provided direct financial support for a large number of land deals.21 In 2011, the Food and Agricultural Organization of the United Nations (FAO) came under attack by a number of advocacy groups when its Secretary General called for large-scale agricultural and land investments in a co-authored contribution to the Wall Street Journal. While both the World Bank and the FAO have also advocated support for smallholder farming in the Global South and have been 18 Bush et al. (2011), supra note 3, p. 189. 19 N. L. Peluso and C. Lund, New Frontiers of Land Control: Introduction, 38 The Journal of Peasant Studies, no. 4 (2011), 667–681. 20 See, e.g., G. C. Schoneveld and L. German, Translating Legal Rights into Tenure Security: Lessons from the New Commercial Pressures on Land in Ghana, 50 The Journal of Development Studies, no. 2 (2014), 187–203. 21 B. White, S. M. Borras Jr., R. Hall, I. Scoones and W. Wolford, The New Enclosures: Critical Perspectives on Corporate Land Deals, 39 The Journal of Peasant Studies, no. 3–4 (2012), 619–647.


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involved in major international initiatives to regulate the global land rush,22 some of their representatives have provided and reinforced discursive justifications for large-scale, transnational land deals.23 Internationally operating commercial banks are another major group of intermediaries in transnational land acquisitions. Germany’s Deutsche Bank and Australia’s ANZ, for instance, have recently been condemned by human rights organizations and international media for financing companies involved in large-scale land grabs and violent evictions of local communities in Cambodia and Laos.24 In the case of green grabbing, eco-certification providers can play a major role in brokering transnational land acquisitions. The above list of actors implicated in the global land rush is certainly not exhaustive, but it gives an indication of the diversity and complexity of the actor landscape.

2.3 Discourses and narratives around transnational land acquisitions The discursive justification for transnational land transactions comprises a whole set of arguments, most notably (1) the need for investment in rural areas to increase agricultural productivity, provide new job opportunities and alleviate rural poverty (the development narrative), (2) the urgency of addressing various major global crises, most notably those around food, water, energy, and climate (the crisis narrative), (3) the availability of unused or underutilized land that could be brought into (more) productive use (the idle land narrative) and (4) the superiority of capital-intensive, large-scale agriculture over semi-subsistence smallholder farming (the efficiency narrative).

22 The World Bank has developed seven Principles for Responsible Agro-Investment, while the FAO has played a major role in the development of the Voluntary Guidelines for Responsible on the Responsible Governance of Land, Fisheries and Forests (see various articles in this special issue). 23 C. Oldenburg and A. Neef, Reversing Land Grabs or Aggravating Tenure Insecurity? Competing Perspectives on Economic Land Concessions and Land Titling in Cambodia, 7 Law and Development Review, no. 1 (2014), doi:10.1515/ldr-2014-0014. 24 Global Witness, How Vietnamese Companies and International Financiers Are Driving a Land Grabbing Crisis in Cambodia and Laos (May 2013), available at: http://www.globalwitness.org/ rubberbarons, accessed 17 October 2014; Inclusive Development International, ANZ Bankrolls Massive Land Grab in Cambodia (January 2014), available at: http://www.inclusivedevelopment. net/anz-bankrolls-massive-land-grab-in-cambodia, accessed 17 October 2014.



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Foreign investors, in particular, tend to emphasize the alleged superiority of large-scale agriculture in addressing the global food security problem. Gary R. Blumenthal, president and chief executive of the agricultural consultancy World Perspectives, Inc., for instance, asserts that “meeting the food requirements of a larger and wealthier world population requires scale and capital investment. Using smallholdings agriculture as a development policy is like promising an automobile to everyone in the world, but limiting construction to hand labor. The principles of industrialization and mass production for increasing productivity apply as much to agriculture as they do to nonagricultural goods.”25 In a similar vein, Phil Riddell – a director of an “investment advisory boutique” targeted at commercial African agriculture – holds that “it is absurd that the case of the small farmer is prioritised so rabidly over the bigger picture and all it represents in terms of food security, employment and economic growth; and this despite small farmers’ increasing irrelevance to national, regional and global food security.”26 Yet even the World Bank – a major player in global agribusiness development – contends in a recent publication that “there is no strong case to replace smallholder with large-scale cultivation on efficiency grounds.”27 A study by the British NGO Oxfam in Cambodia, for instance, found that 98% of land holdings smaller than 0.5 ha were fully cultivated as opposed to 71% of holdings that were larger than 3 ha.28 This suggests that even moderate forms of land concentration can go along with a significant loss of productivity. Also in Cambodia – a major target of transnational land acquisitions – it was found that less than 10% of large-scale economic land concessions were actually under operation.29 A study of six African countries conducted in 2009 by FAO, the International Institute of Environment and Development and the International Fund for Agricultural Development found that 4–5 years after land had been obtained in a set of large-scale deals

25 G. R. Blumenthal, “Investors’ Perspectives”, in M. Kugelman and S. L. Levenstein (eds.), The Global Farms Race: Land Grabs, Agricultural Investment, and the Scramble for Food Security (Chicago: Island Press, 2013), p. 112. 26 P. Riddell, “‘Land Grabs’ and Alternative Modalities for Agricultural Investments in Emerging Markets”, in T. Allan M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook of Land and Water Grabs in Africa Foreign Direct Investment and Food and Water Security (London and New York: Routledge, 2013), p. 175. 27 World Bank, Rising Global Interest in Farmland: Can It Yield Sustainable and Equitable Benefits? (Washington, DC: World Bank, 2011). 28 Oxfam, Report on Land Holding in Cambodia (Phnom Penh: Oxfam GB Cambodia Land and Fishery Programme, 2007). 29 A. Fforde and K. Seidel, Donor Playground Cambodia? What a Look at Aid and Development in Cambodia Confirms and What It May Imply (Berlin: Heinrich-Böll-Stiftung, 2010).


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only 10–15% of the land was actually developed.30 These studies cast doubt on the justification for large-scale land acquisitions and concessions on productivity or efficiency grounds. Smallholder cultivation obviously has advantages on equity grounds, with smallholders’ income being between 2 and 10 times higher than what can be obtained from wage employment.31 De Schutter (2011) maintains that of the around 450 million people employed as agricultural workers on plantations globally about 200 million are estimated to be “food insecure”.32 There are also major arguments put forward against the dominant discourse that only large investors can stem the investments and have the superior technological means needed for establishing agro-industrial plantations. It was stated, for instance, that smallholder farms of 2–3 ha make up about 80% of world rubber production.33 Prior to the recent wave of transnational land acquisitions, small-scale oil palm cultivation in Southeast Asia and West Africa thrived alongside larger plantations and were highly productive and profitable.34 Yet reducing the discourse around transnational land acquisitions and large-scale vs. small-scale farming models to questions of efficiency and productivity risks ignoring the cultural significance of land and the important social and safety net functions that various natural resources hold for rural people. For many rural communities – and indigenous peoples in particular – “land” is not just as a physical resource to be apportioned and allocated for productive purposes, but holds important spiritual and socio-cultural meanings and values.

30 G. Da Silva, Statement prepared for the Global Land Grabbing II International Academic Conference at Cornell University, Ithaca, United States, available at: http://www.cornell-landproject.org/wp-content/uploads/2012/10/graziano_statement.pdf, accessed 17 October 2014. 31 World Bank (2011), supra note 27. 32 O. De Schutter, How Not to Think of Land Grabbing: Three Critiques of Large-Scale Investments in Farmland, 38 The Journal of Peasant Studies, no. 2 (2011), 249–279. 33 Y. Hayami, “Plantation Agriculture”, in P. L. Pingali and R. E. Evenson (eds.), Handbook of Agricultural Economics (Vol. 4, Amsterdam: Elsevier, 2010), pp. 3305–3322. 34 See, e.g. for the case of Indonesia, J. Nagata and S. W. Arai, “Evolutionary Change in the Oil Palm Plantation Sector in Riau Province, Sumatra”, in O. Pye and J. Bhattacharya (eds.), The Palm Oil Controversy in Southeast Asia: A Transnational Perspective (Singapore: Institute of Southeast Asian Studies, 2013), pp. 76–96; D. Byerlee, “Are We Learning from History?”, in M. Kugelman and S. L. Levenstein (eds.), The Global Farms Race: Land Grabs, Agricultural Investment, and the Scramble for Food Security (Chicago: Island Press, 2013), pp. 21–44.



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2.4 Impact of transnational land acquisitions on local communities and the environment While proponents of large-scale transnational land acquisitions point to a range of benefits that these investments may entail for host countries and local communities – most notably the modernization of agriculture, the revival of rural economies, and the improvement of infrastructure – “there have been shockingly few examples of projects that offer real benefits to local populations, or even to host governments”.35 A number of land deals have in fact provided new job opportunities for rural people, but many of these jobs may be seasonal and/or low-wage only.36 Others have included compensatory measures, such as provision of wells, health stations or school buildings. In most recorded cases, however, customary land rights of farmers, pastoralists, hunters and gatherers, fishermen and other occupational groups with high dependency on natural resources have been compromised by large-scale land deals. Dispossession, semi-proletarianization, forced resettlement and increased social conflicts are among the most commonly noted impacts of transnational land acquisitions.37 Women tend to be particularly hard hit by large-scale land deals, especially in cases where forests or other essential communal resources are affected, as they may lose their traditional access to medicinal plants, wild fruits and nuts, fuel, bamboo shoots and other non-timber forest products.38 According to data from the Land Matrix Partnership, more than a quarter of the recorded land deals, where detailed data on previous land use was available, occurred on previously forested land (Figure 1). Smallholder agriculture and pastoralists together were affected by roughly another quarter of the deals. Yet, more surprisingly, nearly half of the land acquisitions replaced other forms of commercial (large-scale) agriculture. Although this information covers

35 A. Spieldoch and S. Murdoch, “Social and Economic Implications”, in M. Kugelman and S. L. Levenstein, The Global Farms Race: Land Grabs, Agricultural Investment, and the Scramble for Food Security (Chicago: Island Press, 2013), p. 61. 36 T. Murray Li, Centering Labor in the Land Grab Debate, 38 The Journal of Peasant Studies, no. 2 (2011), 281–298. 37 See, e.g., for the case of Cambodia: A. Neef, S. Touch and J. Chiengthong, The Politics and Ethics of Land Concessions in Rural Cambodia, 26 Journal of Agricultural and Environmental Ethics, no. 6 (2013), 1085–1103; Oldenburg and Neef (2014), supra note 23; for a global perspective, see F. Pearce, The Land Grabbers: The New Fight Over Who Owns the Earth (Boston, MA: Beacon Press, 2012). 38 R. Hall, Land Grabbing in Africa and the New Politics of Food. Policy Brief 041 (Brighton: Future Agricultures, University of Sussex, 2011); Spieldoch and Murdoch (2013), supra note 35, p. 64–65.


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Conservation 2% Forestry 27%

Pastoralists 6%

Commercial (large-scale) agriculture 47%

Smallholder agriculture 18%

Figure 1: Former land use of acquired or leased land (in % of totally recorded area from January 2000 and January 2014) Source: Data from Land Matrix Partnership, as of February 2014. Note: Total area acquired or leased of which former land use is known ¼ 7,817,000 ha (no information for 27,857,000 ha).

only about 22% of the overall land deals registered in the Land Matrix database due to the opaque nature of such transactions, these figures put the development narrative of the proponents of large-scale land acquisitions under intense scrutiny. While most studies investigating the impact of the global land rush have highlighted the social and economic implications for local communities, the environmental impact of these land deals has received less attention, and results have been somewhat inconclusive.39 Where the production of agro-biofuels (e.g. jatropha, soybean and palm oil for biodiesel) has been the major focus of investors, the environmental impact is likely to be negative, due to the high waterfootprint of these crops40 and – in the case of palm oil – the widespread conversion of forest- and peat-lands into plantations in Indonesia and Malaysia.41

39 L. A. German, W. M. J. Achten and M. R. Guariguata, “Environmental Impacts”, in Kugelman, M. and S. L. Levenstein (eds.), The Global Farms Race: Land Grabs, Agricultural Investment, and the Scramble for Food Security (Chicago: Island Press, 2013), pp. 71–97. 40 W. Gerbens-Leenesa A. Y. Hoekstraa and T. H. van der Meer, The Water Footprint of Bioenergy, 106 Proceedings of the National Academy of Sciences, no. 25 (2009), 10219–10222. 41 See, e.g., German et al. (2013), supra note 39.



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3 Adopting a law and development perspective on the global land and resource rush Most of the scholarly work on transnational land acquisitions and leases in the last few years has been conducted by political economists, development geographers, anthropologists and sociologists. The contributions in this special issue analyse the global land and resource rush through a law and development lens. The articles are based on selected papers from the Law and Development Conference 2013 “Legal and Development Implications of International Land Acquisitions, held on 30 and 31 May 2013 at Kyoto University, Japan. Figure 2 depicts transnational land acquisitions as located in the law– development–ethics–politics nexus. Human rights issues are clearly situated in the intersection of law and ethics, while the “Voluntary Guidelines for Responsible Governance of Land, Fisheries and Forests” – a soft law developed under the leadership of the FAO and discussed in a number of articles in this special issue regarding its effectiveness of containing the global land rush – has obvious links to issues of Corporate Social Responsibility and business ethics. International Investment Law has links to the domain of politics, as it has strong implications for bilateral relations between investor countries and host countries and also pertains to a number of geopolitical issues. The interface between law and development is evident in the controversial social and economic impacts of transnational land acquisitions which operate within a complex and ambiguous legal field of national land legislation, customary/indigenous law and private property rights.

Figure 2: Transnational land acquisitions in the law–development–ethics–politics nexus


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The articles in this special issue explore the law–development–ethics–politics nexus from various perspectives. The first article written by Liz Alden Wily starts with an historical overview of land grabs, arguing that land rushes have rarely been lasting phenomena and have not been able to completely eradicate local land rights in the past. Alden Wily then discusses the role of law in the present surge in transnational land acquisitions. She argues that communally owned and managed off-farm assets, such as forests and rangelands, are the major targets in the current land rush, unravelling stark contradictions in the meaning of property and bringing the conflicts between customary and statutory land law into the limelight. Drawing on a number of countries in sub-Saharan Africa, she holds that while the wave of transnational land acquisitions may threaten the traditional rights of millions of African peasants and pastoralists, they also occur in an era of increased global advocacy and enhanced means of communication and empowerment which could instigate a major countermovement that challenges dispossessory mechanisms of corporate capitalism and may provide new opportunities to promote the legal recognition of hitherto unregistered customary rights. The paper by Salim Farrar discusses the growing investments of Arab countries in large-scale farm operations in sub-Saharan Africa, most notably in Sudan, South Sudan, Mali, Mauritania and Ethiopia. He argues that Arab land acquisitions cannot be classified as neo-colonialist land grabs, but should rather be seen as a deliberate shift of several African governments to export-led growth strategies through the renewal of historical and cultural linkages with the Arab world. In these partnerships between equals, food security of Arab countries is enhanced in exchange for strategic rural development in the African host countries. While Farrar acknowledges that such partnerships have had adverse effects on rural communities and in some cases provided access to the host countries for missionary extremist groups, he does not advocate a general opposition to large-scale land investments by Arab governments, but rather calls for a close monitoring of such deals by the international community and the drafting of an Islamic ethical code of conduct in land investments. The article by Emel Zerrouk and Andreas Neef explores the media discourses surrounding land grabs and local resistance associated with the expansion of the Letpadaung copper mine in Myanmar. The authors’ analysis pertains to how domestic and international media have over time shifted emphasis on certain themes related to this highly contentious land grab case under a rapidly changing legal framework. After describing the history of the mine and discussing recent changes to Myanmar’s national land tenure regime, the authors show that the conflict and related protests and media reports were originally centred on land grabbing, (the lack of) compensation and environmental concerns. With



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enhanced civil and press freedoms under new legislation, the Letpadaung land grab was discursively transformed from a localized struggle for the protection of people’s land and labour rights to a national test of Myanmar citizens’ rights to protest without fear of repression. The contribution from Perry Bechky looks into recent developments in international adjudication of land disputes under the International Centre for Settlement of Investment Disputes. He argues that the question whether a foreign investment made a “contribution to development” in a host country should not be an issue in international adjudication cases, because (1) the word “investment” does not include “contribution to development” in its usual meaning, (2) tribunals are not in a position to judge whether an investment actually contributed to “development”, however this is defined and (3) it would affect smaller investors disproportionately because of the difficulties of providing proof that their small investment made a significant contribution to development of the host state. In the second part of the article, Bechky draws on recent adjudication cases involving the Zimbabwean government to discuss the trend towards transnationalism, where international investment law is intricately linked with human rights law. He concludes that under an appropriate legal infrastructure international adjudication of land disputes may be able to make a significant contribution to upholding universal human values. The article of Lorenza Paoloni and Antonio Onorati provides an insiders’ view of the drafting of the “Voluntary Guidelines on the Responsible Governance of Land, Fisheries and Forests”, arguably the most comprehensive international attempt to contain the global land and resource rush. The authors argue that the Voluntary Guidelines – grounded in international human rights law and designed as an instrument of soft law through a consultative process involving many civil society groups – rightfully acknowledge the customary rights of women, peasants, fishing communities, pastoralists and indigenous peoples, but fall short on a number of crucial issues, most notably by omitting water as a land-related resource that is critical for the livelihoods of millions of rural people. Paoloni and Onorati also maintain that the Voluntary Guidelines do not provide a sufficiently comprehensive regulatory framework to effectively govern transnational land acquisitions. Nevertheless, they conclude that the Voluntary Guidelines are an important first step towards the full recognition and legal protection of people’s rights to land, fisheries and forests. Fantu Farris Mulleta, Pierre Merlet and Johan Bastiaensen adopt a legal pluralism perspective in their analysis of large-scale land acquisitions and leases in Ethiopia. They demonstrate how the Ethiopian state has imposed a legal centralistic conception of the law by declaring itself the sole statutory provider of private and communal rights, thereby disregarding the multifunctional


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character of land and the multiple norms, values and claims underlying its governance at the local level. Mulleta, Merlet and Bastiaensen argue that the regulatory approach to land deals is unlikely to be effective in controlling land deals in Ethiopia because (1) it does not address the power asymmetries underlying large-scale land transactions, (2) it maintains a focus on the state as sole legislative institution and (falsely) regards it as a neutral actor that aims at maximizing social benefits among its citizens and (3) it ignores the existence of competing bilateral and international principles and frameworks. The authors advocate initiatives that aim at identifying and redressing social and institutional imbalances and inequities with regard to land rights and at enhancing the visibility and voice of the poor in their struggle to enforce their customary claims to land and other natural resources. Michael Brüntrup, Waltina Scheumann, Axel Berger, Lidija Christmann and Clara Brandi explore the use of various international governance frameworks that have been proposed to regulate transnational land acquisitions. The authors argue that a major prerequisite to successfully regulating largescale land deals is to recognize their complexities, such as (1) the connection between land and water acquisitions, (2) the fact that domestic investors may be more prominent than foreign ones in some countries, (3) the difficulty of discerning between illegal land grabs and legitimate and fair land transactions and (4) the differential impacts that large-scale land acquisitions can have on various groups within the local communities, e.g. women, migrant groups and ethnic minorities. Their detailed comparative analysis of international legal instruments relevant to large-scale land acquisition and leases suggests that no singular approach can effectively address the complex challenges and driving forces involved in the global land rush. Yet, despite their shortcomings and inherent overlaps and ambiguities, the authors maintain that implementing them collectively is likely to improve processes and outcomes of large-scale land deals and would help mitigate their most detrimental impacts on the poor and marginalized. In the final article of this special issue, Uche Ewelukwa Ofodile explores the interface between transnational land acquisitions, bilateral land investment agreements and international investment law. She argues that bilateral investment treaties (BITs) do not address key environmental, social and governance issues inherent in largescale transnational farmland acquisitions and therefore impose serious constraints on host governments’ leverage to regulate such investments in the public interest. Drawing on a number of examples from sub-Saharan Africa, her analysis reveals substantial asymmetries in existing BITs, most of which grant foreign investors a range of substantive and procedural rights without imposing on them any binding obligations and without



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making any references to human rights, environmental treaties or any other relevant international laws. Ofodile calls for more effective domestic legal and institutional frameworks as major prerequisites for governing the land rush in sub-Saharan Africa. We hope that the articles in this special issue will provide new perspectives on the global and local dimensions of transnational land acquisitions and spark more scholarly interest in adopting a law and development perspective to the global land rush.

References Alden Wily, L., Looking Back to See Forward: The Legal Niceties of Land Theft in Land Rushes, 3–4 The Journal of Peasant Studies, no. 39 (2012). Blumenthal, G. R., “Investors’ Perspectives”, in Kugelman, M. and S. L. Levenstein (eds.), The Global Farms Race: Land Grabs, Agricultural Investment, and the Scramble for Food Security (Chicago: Island Press, 2013). Bush, R., J. Bujra and G. Littlejohn, Editorial: The Accumulation of Dispossession, 38 Review of African Political Economy, no. 128 (2011). Byerlee, D., “Are We Learning from History?”, in Kugelman, M. and S. L. Levenstein (eds.), The Global Farms Race: Land Grabs, Agricultural Investment, and the Scramble for Food Security (Chicago: Island Press, 2013). Clark, G. L., A. D. Dixon and A. H. B. Monk, Sovereign Wealth Funds: Legitimacy, Governance and Global Power (Princeton, NJ and Oxford: Princeton University Press, 2013). Da Silva, G., Statement prepared for the Global Land Grabbing II International Academic Conference at Cornell University, Ithaca, United States, available at: http://www.cornelllandproject.org/wp-content/uploads/2012/10/graziano_statement.pdf, accessed 17 October 2014. De Schutter, O., How Not to Think of Land Grabbing: Three Critiques of Large-Scale Investments in Farmland, 38 The Journal of Peasant Studies, no. 2 (2011). Edelman, M., Messy Hectares: Questions about the Epistemology of Land Grabbing Data, 40 The Journal of Peasant Studies, no. 3 (2013). Ernsting, A., A new look at land-grabs in the global south linked to EU biomass policies (May 2014), available at: http://www.biofuelwatch.org.uk/wp-content/uploads/A-newlook-at-land-grabs-in-the-global-South-linked-to-EU-biomass-policies.pdf, accessed 17 October 2014. Fairbairn, M., ‘Like Gold with Yield’: Evolving Intersections Between Farmland and Finance, 41 The Journal of Peasant Studies, no. 5 (2014). Fairhead, J., M. Leach, and I. Scoones, Green Grabbing: A New Appropriation of Nature? 39 The Journal of Peasant Studies, no. 2 (2012). Fforde, A. and K. Seidel, Donor Playground Cambodia? What a Look at Aid and Development in Cambodia Confirms and What It May Imply (Berlin: Heinrich-Böll-Stiftung, 2010). Fillingham, Z., Why investors such as Jim Rogers and George Soros are interested in farmland. Geopolitical Monitor, 2013, available online at: http://oilprice.com/Finance/investing-and-


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trading-reports/Why-Investors-such-as-Jim-Rogers-and-George-Soros-are-Interested-inFarmland.html, accessed 23 April 2014. Funada-Classen, S., Analysis of the Discourse and Background of the ProSAVANA Programme in Mozambique – focusing on Japanʼs role, available at: http://farmlandgrab.org/uploads/ attachment/ProSavana%20Analysis%20based%20on%20Japanese%20source%20 (FUNADA2013).pdf, accessed 17 October 2014. Gerbens-Leenesa, W., A. Y. Hoekstraa and T. H. van der Meer, The Water Footprint of Bioenergy, 106 Proceedings of the National Academy of Sciences, no. 25 (2009). German, L. A., W. M. J. Achten and M. R. Guariguata, “Environmental Impacts”, in Kugelman, M. and S. L. Levenstein (eds.), The Global Farms Race: Land Grabs, Agricultural Investment, and the Scramble for Food Security (Chicago: Island Press, 2013). Global Witness, How Vietnamese companies and international financiers are driving a land grabbing crisis in Cambodia and Laos (May 2013), available at http://www.globalwitness. org/rubberbarons, accessed 17 October 2014. Hall, R., Land Grabbing in Africa and the New Politics of Food. Policy Brief 041 (Brighton: Future Agricultures, University of Sussex, 2011). Harvey, D., The ‘New Imperialism’: Accumulation by Dispossession, 40 Socialist Register (2004). Hayami, Y., “Plantation Agriculture”, in Pingali, P. L. and R. E. Evenson (eds.), Handbook of Agricultural Economics (Vol. 4, Amsterdam: Elsevier, 2010). Inclusive Development International, ANZ bankrolls massive land grab in Cambodia (January 2014), available at: http://www.inclusivedevelopment.net/anz-bankrolls-massive-landgrab-in-cambodia, accessed 17 October 2014. International Land Coalition, Tirana Declaration, 2011, available at: http://www.commercialpressuresonland.org/sites/default/files/Tirana_Declaration_ILC_2011_ENG.pdf, accessed 17 October 2014. Kugelman, M., “Introduction”, in Kugelman, M. and S. L. Levenstein (eds.), The Global Farms Race: Land Grabs, Agricultural Investment, and the Scramble for Food Security (Chicago: Island Press, 2013). Land Matrix Partnership, Newsletter January 2014 (updated 9 February 2014), available at: http://www.landmatrix.org/media/filer_public/74/1e/741e67d5-cb24-4db6-aadb756fb2bd5f88/lm_newsletter_n2_update_feb_2014.pdf, accessed 17 October 2014. Magdoff, F., Twenty-First-Century Land Grabs: Accumulation by Agricultural Dispossession. Global Research – Centre for Research on Globalization (2013), available at http://www. globalresearch.ca/twenty-first-century-land-grabs-accumulation-by-agricultural-dispossession/5356768, accessed 23 April 2014. Nagata, J. and S. W. Arai, “Evolutionary Change in the Oil Palm Plantation Sector in Riau Province, Sumatra”, in Pye, O. and J. Bhattacharya (eds.), The Palm Oil Controversy in Southeast Asia: A Transnational Perspective (Singapore: Institute of Southeast Asian Studies, 2013). Neef, A., S. Touch and J. Chiengthong, The Politics and Ethics of Land Concessions in Rural Cambodia, 26 Journal of Agricultural and Environmental Ethics, no. 6 (2013). Nerlich, B. and N. Koteyko, Carbon Gold Rush and Carbon Cowboys: A New Chapter in Green Mythology?, 4 Environmental Communication, no. 1 (2010). Oldenburg, C. and A. Neef, Reversing Land Grabs or Aggravating Tenure Insecurity? Competing Perspectives on Economic Land Concessions and Land Titling in Cambodia, 7 Law and Development Review, no. 1 (2014), doi:10.1515/ldr–2014–0014



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Oxfam, Report on Land Holding in Cambodia (Phnom Penh: Oxfam GB Cambodia Land and Fishery Programme, 2007). Oxfam, Land and Power: The Growing Scandal Surrounding the New Wave of Investments in Land, 151 Oxfam Briefing Paper (2011), available at: http://www.oxfam.org/sites/www. oxfam.org/files/bp151-land-power-rights-acquisitions-220911-en.pdf, accessed 15 July 2014. Pearce, F., The Land Grabbers: The New Fight Over Who Owns the Earth (Boston, MA: Beacon Press, 2012). Peluso, N. L. and C. Lund, New Frontiers of land Control: Introduction, 38 The Journal of Peasant Studies, no. 4 (2011). Riddell, P., “‘Land Grabs’ and Alternative Modalities for Agricultural Investments in Emerging Markets”, in Allan, T., M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook of Land and Water Grabs in Africa Foreign Direct Investment and Food and Water Security (London and New York: Routledge, 2013). Schoneveld, G. C. and L. German, Translating Legal Rights into Tenure Security: Lessons from the New Commercial Pressures on Land in Ghana, 50 The Journal of Development Studies, no. 2 (2014). Scoones, I., R. Hall, S. Borras, B. White and W. Wolford, The Politics of Evidence: Methodologies for Understanding the Global Land Rush, 40 The Journal of Peasant Studies, no. 3 (2013). Spieldoch, A. and Murdoch, S., “Social and Economic Implications”, in Kugelman, M. and S. L. Levenstein (eds.), The Global Farms Race: Land Grabs, Agricultural Investment, and the Scramble for Food Security (Chicago: Island Press, 2013). Von Braun, J. and R. Meinzen-Dick, “Land Grabbing” by Foreign Investors in Developing Countries: Risks and Opportunities. IFPRI Policy Brief 13 (Washington, DC: International Food Policy Research Institute, 2009). White, B., S. M. Borras Jr., R. Hall, I. Scoones and W. Wolford, The New Enclosures: Critical Perspectives on Corporate Land Deals, 39 The Journal of Peasant Studies, no. 3–4 (2012). Woertz, E., “The Global Food Crisis and the Gulf’s Quest for Africa’s Agricultural Potential”, in Allan, T., M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook of Land and Water Grabs in Africa Foreign Direct Investment and Food and Water Security (London and New York: Routledge, 2013). World Bank, Rising Global Interest in Farmland: Can It Yield Sustainable and Equitable Benefits? (Washington, DC: World Bank, 2011).


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Article Liz Alden Wily*

The Law and Land Grabbing: Friend or Foe? Abstract: This paper reflects upon the role of law in the contemporary surge in global large-scale land acquisitions. Its point of reference is the land security of several billion rural poor who traditionally own and use untitled lands that are classified as state lands or unowned public lands in national laws. Most of the affected lands are off-farm areas including forests, marshlands, and rangelands. Investors target these lands in belief they are unowned. Governments concur, selling or leasing these lands on grounds of being technically the lawful owner and despite awareness that these lands are occupied and used. Despite the longstanding nature of such conflicts as well known and long debated, the present land rush brings unresolved contradictions between statutory and customary law and associated meanings of property firmly to the fore. Using Sub-Saharan Africa as the example, this paper examines the legal effects. It is shown that while millions of local land rights are threatened, the land rush also vitalises demands for improved national law status for unregistered customary rights, including those such as forest and rangelands purposely held by communities in common. To this extent, the contemporary rush could prove as much legal friend as foe to majority land rights in agrarian economies. This is partly because the current rush, unlike those that have gone before it, occurs in an environment of advanced popular communication, emergent mass empowerment, and has the advantage of a pre-rush era of legal improvement in the handling of indigenous and customary land rights that has established alternative precedents. Opportunities to coerce modification of classical dispossessory paths of economic growth strongly exist. Global advocacy for secure community land rights is rapidly advancing. Keywords: land rush, customary rights, collective entitlement, capitalist transformation, real property DOI 10.1515/ldr-2014-0005

*Corresponding author: Liz Alden Wily, Affiliated Fellow, Van Vollenhoven Institute, Universiteit Leiden, Leiden, The Netherlands, P. Box 1642-00621, Nairobi, Kenya, E-mail: [email protected]


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1 Introduction The global land rush refers to the surge in large-scale land acquisitions in developing economies triggered by the oil, food supply, and financial crises of 2006–2008.1 Although land buy-ups by local companies and individual entrepreneurs are closely intertwined with the surge in foreign acquisitions, the latter are more prominent in terms of scale and implications, inter alia generating charges of new forms of colonialism. Objectives of large-scale acquisitions remain mixed, ranging from genuine intentions to produce food and biofuel crops at scale as a hedge against unstable commodity markets, to speculative acquisitions encouraged by availability of surplus cash withdrawn from enterprises deemed risky following the credit crisis. In mid-2013, it is unclear whether the rush is gathering pace or receding. This is despite expensive initiatives launched to track its scope,2 high levels of mainly adverse publicity,3 advisories issued by international organisations cautioning investors and host governments against wilful removal of people from traditional lands,4 a gathering number of early failures of schemes reminiscent of comparable botched large-scale land projects of earlier decades,5 and 1 W. Anseeuw, L. Alden Wily, L. Cotula and M. Taylor, Land Rights and the Rush for Land. Findings of the Global Commercial Pressures on Land Research Project (Rome: International Institute for Environment and Development, CIRAD and International Land Coalition, 2012). Available at: Also refer to Land Matrix Project and Data: 2 I. Scoones, R. Hall, S. Borras, B. White and W. Wolford, The Politics of Evidence: Methodologies for Understanding the Global Land Rush, 40 Journal of Peasant Studies, no. 3 (2013), 469–483. Also refer regular information updates on the land matrix project and portal 3 R. Palmer, Select Bibliography (1) on Reports on Biofuels, Land Rights in Africa and Global Land Grabbing, 2006–2013 (Oxford: Mokoro Ltd, 2013), available at: 4 UNCTAD, FAO, IFAD and The World Bank, Principles for Responsible Agricultural Investment (PRAI) (Seoul, 2010), available at: and Voluntary Guidelines on Responsible Governance of Tenure (Rome: FAO and others, 2011), available at: . Also refer The Munden Project, The Financial Risks of Insecure Land Tenure An Investment View (Washington, DC: The Munden Project, 2012). 5 D. Ramaswamy, Comments on Agricultural Investment in Ethiopia, available at: , accessed 1 May 2013; and J. Hopma, Planning in the Wind: The Failure of Jordanian Investments in Sudan (Brighton: Land Deal Politics Initiative Working Paper No. 22, 2013).


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mounting protest by evicted populations or those alarmed at the possibility of this occurring as a consequence of local lands being allocated to large-scale enterprises.6 This suggests the rush is less malleable than pro-poor development advocacy might like and that the trend continues to secure traction with national governments and local commercial sectors. It is also noticeable, if barely a topic in the literature, that the rush has not (yet) triggered a surge in land prices or rise in the associated surge in water takings which large-scale estate farming promises to generate; host governments are apparently still content to lease out their lands (or more correctly, the lands of their people) for paltry amounts, and to assure large-scale users access to water at low to zero cost.7 Meanwhile the rush itself is better appreciated each year as a more amorphous and complex event than seemed the case following global oil and food price hikes in 2006–2008. Its reach is now accepted as encompassing concessions for extraction of oil and gas, minerals, timber, water, and for carbon sequestration posing as conservation (the green grab); less one-way in north/ south orientation; and more global in its reach than early focus upon Africa and Asia suggested.8 Although opportunistic, links are also now being made with the lows and highs in a continuing process of land concentration within Europe.9 The above link into the main context of this paper which aims to illustrate the current rush in its political context as elemental to social transformation, and thus less unique event than a surge within a well-trodden path of expanding and also ever-globalising capitalism.10 In this framework, land rushes are identifiable as periodic and predictable events, representing bouts of primitive accumulation of lands and resources by elites in agrarian economies, usually

6 “Largest Liberian oil palm project is failing locals: study” (Reuters, 22 March 2013), available at: 7 T. Allan, Introduction: Can Improving Returns to Food-Water in Africa Meet African Food Needs and the Needs of Other Consumers? In T. Allan, M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook of Land and Water Grabs in Africa Foreign Direct Investment and Food and Water Security (London and New York: Routledge, 2013), pp. 1–8. 8 S. Borras, C. Kay, S. Gomez and J. Wilkinson, Land Grabbing and Capitalist Accumulation: Key Features in Latin America, 33 Canadian Journal of Development Studies, no. 4 (2012), 402–416. 9 Transnational Institute for European Coordination, Via Campesina and Hands off the Land Network, Land Concentration, Land Grabbing and People’s Struggles for Land (Amsterdam, 2013), available at: 10 H. Bernstein, Class Dynamics of Agrarian Change (Halifax, Winnepeg, and Virginia: Fernwood Publishing and Kumarin Press, 2010).


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with the active support of governments with whom private enterprise in less developed polities is often linked in personal ways.11 In respect of Sub-Saharan Africa, Issa Shivji, prefacing able research by Patnaik and Moyo on the relationship of the current rush with global capitalism, reminds us of three facts of direct relevance to this exposition; first, that the iron rule of five centuries of capitalism has consistently delivered accumulation at one end of society and pauperisation at the other; second, that Africa has endured the greatest social devastation in this process, inclusive of millions of its people being sold into slavery to support growth in other continents and steady pillage since of its land, forests, minerals, water, and bioresources; and third that accumulation by dispossession lies so fundamentally at the heart of the world system of capitalism that the capitalism system itself must be held as primitive.12 While Shivji, Patnaik, and Moyo urge abandonment of this mode of “barbarous” growth, we can here be more practically warned that outright derailment of its path will be difficult. The research of Lee Peluso and Lund on governance issues associated with this current phase of social transformation, of Murray Li on its labour dynamics, and of McMichael on changing food supply regimes, which often drive surges in capitalist growth, tend to confirm difficulties in countering what seems like the inevitability of mass dispossession of rights and resources in social transformation.13 Descriptive accounts of how the current rush is playing out, such as latterly by Borras, Franco, and Wang, suggest similarly.14 This paper, however, focuses upon the legal dynamics of dispossession itself and in the process offers a less pessimistic future. It is argued that in the same way as state law has been put to work to legitimise mass land takings, with active awareness and prompt action, it could be put to work to serve majority land interests and restructure if not halt longstanding legal conventions in this area. In exploring this, the paper is less interested in the classical central ground of property relations, the tenure of the house and farm, than in the many times 11 D. North, J. Wallis and B. Weingast, Violence and Social Orders A Conceptual Framework for Interpreting Recorded Human History (Cambridge: Cambridge University Press, 2009). 12 I. Shivji, Preface, page 4, of U. Patnaik and S. Moyo, The Agrarian Question in the Neoliberal Era Primitive Accumulation and the Peasantry (Dar es Salaam: Pambazuka Press, 2011). 13 N. Lee Peluso and C. Lund, New Frontiers of Land Control: Introduction, 38 The Journal of Peasant Studies, no. 4 (2011) 667–681; T. Murray Li, Centering Labor in the Land Grab Debate, 38 The Journal of Peasant Studies, no. 2 (2011), 281–298; P. McMichael, Land Grabbing as Security Mercantilism in International Relations, 10 Globalizations, no. 1 (2013), 47–64. 14 S. Borras, J. Franco and C. Wang, The Challenge of Global Governance of Land Grabbing: Changing International Agricultural Context and Competing Political Views and Strategies, 10 Globalizations, no. 1 (2013), 161–179.


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greater space which is occupied by off-farm resources, and which are so consistently and characteristically deemed by statutory property law to be effectively unowned, and even unownable. This is profoundly contradicted by local reality and by the terms of indigenous or customary land norms, which on the contrary locate collectively possessed forests, rangelands, and marshlands as deeply central to the property norms of rural communities. The precise objective of this paper is to examine whether the contemporary land rush is deepening this legal contradiction further. In the course of this, a salient aspect of land rushes is illustrated; that despite the alarm they generate, rushes have rarely proved lasting or complete in their capture of local lands by large-scale land enterprise. Nor do they, or the contextual political and economic transformations from which they descend, appear to successfully extinguish local land rights in their entirety. For example, despite a century of harshly suppressive state land law in South Africa, Zimbabwe, and Namibia, customary land claims have ultimately proved sufficiently resilient to require expensive compensation and restitution schemes.15 These well-known cases also illustrate the inextricable relationship of land and property rights with socio-economic and political rights, locating the issue firmly in the sphere of governance. The fact that remedies in those cases are still far from delivered after two decades also reminds us of the tenacity of contrary dispossessory norms and that pro-majority tenure reforms are difficult to secure in practice. A subtle transformation in rights themselves underwrites these battles over land and associated wealth and power, and which broadly play out as contestation between people and the state, and their respective national and local systems for protecting the private possession of lands. Thus, when community landholders are confronted with challenges as to their rights, they often respond expediently by reconstructing their rights in the image of better-protected statutory entitlements, including claims of absolute possession and tradability. While this principally requires a buy-in by communities into notions of land as a disposable commodity, and associated individualisation, it also prompts shifts in the meaning of property as real property without necessarily being tradable. This is especially important in respect of communal resources, wherein the community is a continuing social entity over time. How modern tenure law

15 For South Africa refer and and ; for Zimbabwe: ; for Namibia: and


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handles those generally off-farm assets is the area where most contention and alteration is being experienced today, along with shifts in the understanding of communities as legal entities, competent to hold such assets collectively. The global land rush enters the fray in the midst of such transitions. Therefore, while the initial impact (or fear of impact) of the current rush is wrongful but legal dispossession of poor rural communities at scale, there is countering potential for populations to challenge and refashion this path. Their success would not so much halt the land rush as coerce shifts in its modus operandi to modify its dispossessory effects. Key indicators to keep watch upon will be how far legal classification of lands as state properties rises or declines as a proportion of total country areas in favour of acknowledged community owned lands; how far industrial land developments evolve on the basis of leasing directly from communities, rather than from governments, and how far newly acknowledged community landowners are included as shareholders in commercial land developments where their lands are being used. Even a limited shift towards these innovations would mark an important turning point towards more popularly inclusive routes of land-based growth. The direction of modern land law on these matters is crucial.

2 Land rushes and the law This is not least because, with exceptions, the dominant norm in national legislation globally is, as suggested earlier, that lands not formally titled are not state-acknowledged real property. This leaves millions of rural dwellers technically landless, permissive occupants on land acquired through nonstate community-based regimes, usually termed customary or indigenous tenure regimes. National laws generally override interests delivered through such regimes. In the absence of acknowledged owners, affected lands usually fall to government as its private property (and particularly where these lands are forested or included marshlands), as national property under its trust, or as public lands, which again the state may allocate as if empty of existing owners. While uncertainty of rights may prevail for generations, surges in state allocation of such domains bring the contradictory claims of customary and statutory tenure to the fore. This is what is occurring in the current land rush, for it is mainly such lands that are being handed over at scale to investors or speculators, in pursuit of classical visions of domestic and global growth.


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Untitled but customarily occupied or used lands that could be affected by the current (or subsequent) land rushes are significant in area. It is well to remember that only 11% of the world’s land surface is cultivated, the greater resource being off-farm lands, and over which thousands of communities sustain communal norms of possession, access, and use.16 The roles that such offfarm lands play in household economies range from being significant to representing the major source of livelihood.17 In terms of area, such assets comprise 8.5 billion ha, excluding waters, foreshores, and extreme deserts, of which 2.35 billion hectares (ha) are located in Sub-Saharan Africa. Less than 10% of this area is privately titled and accordingly outside the customary sector.18 Cities and towns absorb another 1% of land area.19 Of the remaining 2.1 billion ha, only 8% is permanent farmland (168 million ha). This leaves 1.93 billion ha of forestlands, rangelands,20 and wetlands. Some 320 million ha of this has already been withdrawn from community jurisdiction as gazetted national parks and reserves, a process that normally extinguishes customary rights. An unknown part of the remainder is genuinely unowned, in the sense of being beyond the historical or present jurisdiction of any one rural community. This still leaves a potential 1.6 billion ha of contradictory customary-statutory claim, which the land rush now brings into clearer contestation. Significant parts of these lands were already leased out prior to the current land rush, mainly under extractive concessions to oil, gas, timber, and mining companies. For example, half the country areas of Cameroon and Gabon were subject to logging and concessions by 2005, overlaid by concessions for exploratory or extractive mining.21 As elsewhere in the continent millions of people live within these areas, depend upon them for livelihood, and claim them as historically and contemporarily their collective property, the dictates of national property law notwithstanding.

16 Data on land types in this section derive from L. Alden Wily, The Tragedy of Public Lands: The Fate of the Commons Under Global Commercial Pressure (Rome: International Land Coalition, 2011). 17 L. Emerton, Quantifying the Impacts of Barriers to Pro-Poor Forest Management, Livelihood and Landscape Strategy (Gland: IUCN, 2010). 18 Mainly absorbed by the “white” farms of South Africa, Zimbabwe, and Namibia, with 27% of Kenya also under private title. Elsewhere, titled lands often comprise less than 5% of the total country area. 19 S. Angel, D. Parent, S. Civco and A. Blei, The Atlas of Urban Expansion (Cambridge, MA: Lincoln Institute of Land Policy, 2010). 20 Including grasslands, shrublands, and bushlands. 21 L. Alden Wily, Land Rights in Gabon. Facing up to the Past – and the Present (Moreton-onMarsh, FERN, 2011).


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2.1 Global adoption and entrenchment of dispossessory land law A background word must be said on how the contradictions between customary and statutory tenure norms have come about. In brief, these have origins in the state-making norms of European states, whereby kings sought control over as much land as possible to bolster their authority and their treasuries. English land law, for example, evolving through the creation of the post-indigenous Norman feudal state from the eleventh century, reconstructed land ownership as a lien or gift of the King, separating possession by commoners from legal title awarded to elites in return for their military and financial support.22 Land taxes in turn provided the core of state revenue and its survival. By 1436 nearly half of England’s lands were controlled by 51 barons, inextricably bound to the state, precisely because their land assets were dependent upon sustained state recognition of their tenure.23 In due course English kings would pursue offshore the same land-capturing colonialism its indigenous populations endured, most notably in Ireland in the early seventeenth century. In 1608, for example, the King Court in London reconstructed the meaning of local Irish customary land law and rights as amounting to less than property, precisely in order to be able to lawfully take those lands at scale as unowned; this opened the way for Irish lands in virtually their entirety to be reallocated to English nobles for plantation developments.24 In 1813, the new American Supreme Court engineered a similar denial of attributes of real property to native Indian landholding, for the same purpose of denying that their lands were already owned, and reconstructing these as lands that only the individual state governments could allocate.25 By then this had philosophical support; although John Stuart Mills was yet to develop his defining thesis on property (1859), John Locke (1689) had already established the notion that property only comes about by the will of the state. Adam Smith (1776) had also helpfully established that property only comes into being by man’s labour, not that this applies to large land acquirers. The courts of the Spanish, Portuguese, Belgians, Dutch, and French were no less skilled than the English in creating law to support massive capture of lands all around the globe.

22 D. North, J. Wallis and B. Weingast, Violence and Social Orders A Conceptual Framework for Interpreting Recorded Human History (Cambridge: Cambridge University Press, 2009), pp. 106–07. 23 Ibid. 24 S. Dorsett, “Since Time Immemorial”: A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry, 3 Melbourne University Law Review (2002), 1–26. 25 Johnson and Graham’s Lessee v. William M’Intosh, 21 U.S. (543) 1823.


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The Declaration of the Rights of Man (1789) and the subsequent influential Napoleonic Civil Code (1804) consolidated the notion of property as existing only by state dictate and issue of title, meaning that real property owners in France remained few and the peasantry, despite titular liberation in other respects, still deprived of recognition of their rights as of equivalent force and effect.

2.2 Dispossessing Africans, 1885 Therefore, by the time 14 plenipotentiaries of European states (including America, Russia, and Ottoman Empire) met in Berlin in 1884–1885 to divvy up Africa into preferential trading zones, they were practised in legal justification that the lands and resources they wanted were unowned. Accordingly, the international law arising out of Berlin, the General Act of the Berlin Conference on West Africa, 26 February 1885, only required the signatories to establish sufficient authority “to protect existing rights”, meaning their own rights, not those of natives (Article 35). Africans were not entirely forgotten; the Powers (as they referred to themselves) were to hold a watching brief over their moral wellbeing “to bring home to them the blessings of civilization” (Article 6). While initially the Powers had no intention to create expensive colonies (this was already problematic in other continents), the necessity for this emerged almost immediately as the free trade agreements collapsed, each Power competing to control the African market for disposing the cotton, copper, and other manufactures lying unsold in depressed Europe, to capture African coffee, tea, fruit, and sugar production to feed their own expanding middle classes, to protect their rapidly expanding rubber, oil palm, and sisal plantations, and to secure for themselves the gold, ivory, timber, and other riches of the continent. It is also worth noting that the financial crisis and depression of the 1880–1890s era also left what Hobsbawn describes as cash-rich entrepreneurs with money burning holes in their pockets and looking for new spheres wherein to invest.26 Proof that Africa was unowned became a crucial task in lawfully capturing African lands, not least to forestall reaction at home by religious and humanist activists who had recently forced the ending of the slave trade. Solutions were delivered in tens of sovereignty-cum-property laws enacted for colonies between 1895 and 1914.27 Predictably, these established European heads of state as the ultimate owners of all local resources and only from whose hands acknowledged 26 E. Hobsbawn, The Age of Empire 1875–1914 (London: Abacus Reprint 1997, 1987), pp. 62–67. 27 L. Alden Wily, Rights to Resources in Crisis: Reviewing the Fate of Customary Tenure in Africa (2011), available at:


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real property could derive. This could occur by registration of documents of approved past purchases from natives (applicable within existing coastal enclave or mission areas) or through new land grants to European settlers and traders. While British and German administrations favoured issue of entitlement in absolute or long lease titles to individuals, the French and Belgians found it easier to allocate millions of hectares of their new hinterland territories to consortia of home companies, requiring them to perform policing or tax collection duties on their behalf. By 1900, more than 70% of modern Gabon and the Republic of Congo were divided into 42 French company concessions.28 Most laws did permit Africans to secure lands also, but through such onerous routes and with such limitations that few took up this opportunity.29

2.3 A century of consolidated dispossession: 1890–1990 The road to the theft of African lands was not smooth. Throughout the continent land takings and associated coercion of labour for European enterprise met with protests, boycotts of European goods, refusal to sell food to European traders and mission stations, and rebellions.30 On occasion, local elites with longstanding relations with European traders as themselves former slave, rubber, or gold traders, found ways to play the colonisers at their own legal game. This was most successful in coastal Ghana during the 1890s, where experienced chiefs uniquely secured timber and gold-rich areas as their own, not Crown property.31 It was almost as successful in respect of Lagos Island through legal challenges to the Colony of Southern Nigeria in 1912 and 1915.32 This culminated in a Privy Council ruling in London in 1921 that natives should be compensated when their settled lands were taken for public purposes, but stopped short of applying this 28 C. Gray, Colonial Rule and Crisis in Equatorial Africa. Southern Gabon ca. 1850–1950 (New York: University of Rochester Press, 2002), p. 142. 29 See supra note 43. 30 See Alden Wily as in note 34 supra for Gabon; for Namibia, refer W. Werner, A Brief History of Land Dispossession in Namibia, 19 Journal of Southern African Studies, no. 1 (1993), 135–146; for Tanganyika, refer J. Iliffe, Tanganyika under German Rule, 1905–1912 (Cambridge: Cambridge University Press, 1969); and for Angola, refer A. Cain, “Angola: Land Resources and Conflict”, in Land and Post-Conflict Peacebuilding, J. Unruh and R. Williams (eds.), London: Earthscan at Routledge, 2013), pp. 173–200. 31 K. Amanor, “Securing Land Rights in Ghana”, in J.M. Ubink, A.J. Hoekema and W.J. Assies (eds.), Legalising Land Rights Local Practices, State Responses and Tenure Security in Africa, Asia and Latin America (Leiden: Leiden University Press, 2009), pp. 97–132. 32 Oduntan Onisiwo v. The Attorney General of Southern Nigeria (2.N.L.R. 77 [1912]) and Attorney General of Southern Nigeria v. Holt (2.N.L.R. 1; [1915], A.C. 599).


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to unoccupied lands.33 This reinforced the notion of off-farm lands as wastelands, empty of owners. As twentieth century demands that colonial administrations not just pay for themselves but make a profit for the home country, land takings multiplied, with new rushes after both World Wars, expanding settler occupation in Anglophone and Lusophone Africa, and French company capture in Francophone and Belgian Africa. Takings at scale for public–private enterprise gathered pace after 1946 for mega-projects such as launched by the Niger Basin Authority to green the desert in Mali, by the British Ministry of Food to grow groundnuts in Tanganyika, or for equally un-lasting sesame and sorghum schemes in Sudan.34 International agribusiness was a main beneficiary, including oil palm companies in Ghana, Firestone rubber in Liberia, Brooke Bond, and Del Monte tea and fruit conglomerates in Kenya, and ranching schemes in South Africa.35 All this land taking through the twentieth century was complemented by state capture of all waters, foreshores, beaches, oils, minerals, marshlands and often forests, woodlands and rangelands, even though at home in Europe (and America) private ownership usually encompassed rights above and below the soil, and also, in civil law, permitted small waters to be owned.36 These grabs were reinforced from the 1940s by a wave of land takings in the form of gazetting forest reserves for state capture of lucrative hardwoods, then cleared for replanting of (then) even more lucrative exotic species.37 This was revitalised after Independence in the 1960s, reservation not reconstructed as necessary for conservation until the 1980s. The Rio Declaration (1992) triggered a further wave of capture of some of the most valuable community lands as Terrestrial

33 Amodu Tijani v. The Secretary, Southern Provinces, 11 July 1921. 34 H. Verhoven, Sudan and Its Agricultural Revival: A Regional Breadbasket or Another Mirage in the Desert? Chapter 1.3 in Allan et al. (eds.) 2013, supra note 9, pp. 43–56. 35 K.S. Amanor, “Sustainable Development, Corporate Accumulation and Community Expropriation: Local and Natural Resources in West Africa”, in K.S. Amanor and S. Moyo (eds.), Land and Sustainable Development in Africa (London and New York: ZED Books, 2008), pp. 127–157; K. Kanyinga, O. Lumumba and K.S. Amanor, “The Struggle for Sustainable Land Management and Democratic Development in Kenya: A History of Greed and Grievances”, Chapter 4 in K.S. Amanor and S. Moyo (eds.), pp. 100–123; and D. Potts, “Land Alienation under Colonial and White Settler Governments in Southern Africa: Historical Land ‘Grabbing’”, in Allan et al. (eds.), 2013, pp. 24–42. 36 L. Alden Wily, Going Global: Securing the Commons at Scale, paper presented at International Land Coalition, Rights and Resources and Oxfam Conference on Land Rights (Bellagio, 2012). 37 J. Fairhead, M. Leach and I. Scoones, Green Grabbing: A New Appropriation of Nature? 39 Journal of Peasant Studies, no. 2 (2012), 237–261.


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Protected Areas, now numbering 320 in Sub-Saharan Africa, absorbing millions of hectares. The coerced commodity production on peasant farms that accompanied much of the above through the twentieth century was just as provocative, and through the necessity to also pay hut taxes drove a great deal of migration, displacement, and land loss.38 Latter-day colonial policies during the 1950s compounded mass insecurity, in declared aims and emergent titling programmes to suppress family and communal tenure in favour of individualisation and associated policies to hasten concentration into landowning and landless classes to provide the labour needed for new waves of commercial land enterprise and hoped for urban industrialisation.39 As independence loomed, European capitals also hastened to position themselves as key beneficiaries of raw materials and commodities, such as they intended in the 1880s, exemplified in the determination of De Gaulle to refashion the French colonies into a French Federation. Such strategies were not rejected by emerging African elites allied with the colonial administrations, so much as these raised the ire of African elites at being excluded from the rewards of large-scale land capture, and which were still being periodically awarded Europeans.40 African society had rarely been equitable and with origins often in slave and commodity trading families or chiefdoms, elites had gained immensely from the encouragement given to mission schools through the century and had been routinely co-opted, as regional guards or as local administrators in the Indigenat or British Indirect Rule regimes from the 1920s. By the late 1950s, the separation of elite land interests from the poorer majority were ripe for renewed legal entrenchment favouring the former. Bayart, in his brilliant exposition of the politics of the belly during this and later years, and Chabal and Dauloz in their analysis of neopatrimonial relations in Africa, amply illustrate the dynamics of elite-driven interests during the pre- and post-independence era.41

38 D. Bryceson, Changes in Peasant Food Production and Food Supply in Relation to the Historical Development of Commodity Production in Pre-Colonial and Colonial Tanganyika, 7 Journal of Peasant Studies, no. 3 (1980), 281–311. 39 The Report of the East African Commission of Inquiry into Land Tenure (1955) by the British Government was echoed in Francophone country studies on tenure in 1958–1960. 40 Perhaps the largest wave of which was renewed issue of lands to Europeans by the Portuguese Government in Angola during the 1950s; see Cain (2013), supra note 46. 41 J.-F. Bayart, The State in Africa The Politics of the Belly (Cambridge: Polity Press, 2009); P. Chabal and J.-P. Daloz, Africa Works Disorder as Political Instrument. (Oxford, Bloomington and Indianapolis: The International African Institute with James Currey, 1999).


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These dynamics help explain why so few new African nations (roughly 40 independent states were created between 1956 and 1975) did not take independence as opportunity to liberate their people’s land rights from introduced European norms and instead confirmed and even expanded lawful dispossession of their own citizens through denial of customary land interests as having force and effect as property.42 By the 1980s a plethora of semi-autonomous government agencies were additionally beneficiaries of vast acreages of lands presumed legally to be unowned. These parastatals were usually run by associates of politicians and civil servants, who have been as frequently the leading beneficiaries of lands when these parastatals eventually began to be dismantled during the 1990s.43 The average size of peasant farms also plummeted, involuntary farm landlessness rising by the 1990s to South Asian levels of the 1970s. In Kenya, for example, 3% of the population then and now control at least 20% of the land.44 As illustrated below in the case of Tanzania, post-colonial land law continued to ease paths of eviction and dispossession. Where affected communities protested loss of their lands, new legislation was introduced to remove doubts as to the legality of land takings. In Sudan, for example, this was accomplished by the Unregistered Land Act, 1970, to allow 5 million ha of Nuba and Funj lands to be legally allocated to elite Sudanese and Middle Eastern investors, prompting these populations to join Southern Sudanese in their war with Khartoum (1984– 2002). The upshot for these and other affected rural populations across the continent was that they had even less legal security in 1990 than they had possessed in 1890, and the risk of losing land in practice had grown exponentially.

3 African land reform and the land rush A wave of land reform has slowly crept across the continent since 1990. This has been unlike the redistributive farmland reforms of the twentieth century in Asia 42 L. Alden Wily, “The Law Is to Blame” Taking a Hard Look at the Vulnerable Status of Customary Land Rights in Africa, 42 Development and Change, no. 3 (2011), 733–757. 43 K. Mwaura, The Failure of Corporate Governance in State-Owned Enterprises and the Need for Restructuring Governance in Fully and Partially Privatized Enterprises: The Case of Kenya, 31 Fordham International Law Journal, no. 1 (2007), 34–73. 44 T. Jayne and M. Muyanga, Land Constraints in Kenya’s Densely Populated Rural Areas: Implications for Food Policy and Institutional Reform. Springerlink.com, 2012, available at: , accessed 1 July 2012.


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and Latin America in that in Africa, reformism has focused on three other issues: (i) mechanisms for more effective land administration, tending towards devolved processes; (ii) the status of majority rural customary land rights; and (iii) (often contradictory) strategies to make untitled land more freely available to local and foreign investors.45 While political democratisation, ending of civil wars, and the final demise of white rule in Southern Africa have been shapers of policies, initial drivers to launch tenure reform have commonly been to comply with the structural adjustment demands imposed by international financial institutions to make land available for private investors, local and international. As a consequence, new land policies and laws have rarely delivered consistent, radical or definitively pro-majority visions of land rights. Instead they are characterised by dual strategies, on the one hand aiming to protect local rights, while with the other hand promoting pro-investor strategies in a manner that threatens local rights. Contradictions tend to be ignored or protested as not existing. Thus, the new Liberian National Tenure Policy declares that “the principles of economic growth and tenure security are not in conflict with one another but are complementary”,46 but fails to lay out how the estimated 57% of Liberia which the state has leased to large companies, much of it in the last five years, will be recovered by customary land owners whose rights are declared protected. Additionally, constructs for group rights are often awkwardly posed in many new national land laws, and yet embraces the greater proportion of customary lands. Broadly, the results of land law reformism for community-derived land rights have been mixed. Six states (Mozambique, Uganda, Tanzania, Burkina Faso, South Sudan, and Madagascar) have adjusted laws to award customary rights equivalent force and effect as real property rights, irrespective of whether or not these are surveyed and registered, and/or held by individuals, families, or communities. Ghana and Botswana had undertaken this much earlier (in 1896 and 1968, respectively). Imperfections abound in the norms of all eight states. Another 12 states (Kenya, South Africa, Liberia, Namibia, Senegal, Benin, Sierra Leone, Angola, Nigeria, Malawi, Gambia, and Togo) have done so in more proscribed manner or have promises and plans in progress, in the form of new policies and new laws.

45 L. Alden Wily, Whose Land Are You Giving Away, Mr President? paper presented at the World Bank Conference on Land Policy and Administration (Washington, 2010), available at: 46 Government of Liberia, National Land Tenure Policy (Monrovia: The National Land Commission, 2013), p. 4.


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This still leaves most African states as having taken no or very limited steps towards liberating their citizens’ land interests from a century of dispossessory legislation and policies. Some of these have in fact taken alternative routes, such as through extinguishing customary land rights altogether (Eritrea, Ethiopia, and Rwanda). Some do acknowledge in policies or laws that certain customary holdings could be acknowledged as real property but limit this to homesteads and/or offer routes that require extinction of the customary right in favour of applying to purchase (their own) untitled lands, or similar routes discouraging to customary majorities. The most resistant to tenure reform (political pledges to reform aside) are mainly Congo Basin and Sahelian States, such as Cameroon, Gabon, Central African Republic, Mali, Mauritania, and Sudan. Zimbabwe also falls in this category, having ironically liberated lands held by white farmers while forcefully retaining a situation in which communal lands remain vested in the President, with absolute powers of disposition. Sudan, another example, continues to fail to meet restitution commitments agreed in the 2005 Comprehensive Peace Agreement following the 24-year long North–South War. Meanwhile, it may be cursorily observed that no African country has yet seen fit to liberate state capture of all waters, beaches, foreshores, minerals, and oils with restitution of possibilities for communities to recover relevant local assets in the future, such changes as there have been uniformly in the direction of availing affected communities social services or other such facilities, termed benefit-sharing, remote from resource-sharing. Nor are communities yet permitted to become owners of protected areas, sustaining the convenient fiction that valuable resources require state ownership to be conserved, notable exceptions being South Africa and Tanzania. The overall result is that a small proportion of African customary lands are secured in principle or practice. Even accounting for promised changes in Kenya, which is in process of preparing a Community Lands Bill, only 220 million ha on the subcontinent are (to one degree or another) recognised as customary property, just over 10% of all untitled African lands. Among these, the most substantial and firmly secured lands are those categorised as Village Lands in Tanzania, extending over 69% of the total country area, a case elaborated later.

3.1 The role of the land rush in tenure reform By 2010 it was becoming apparent that the land rush was putting a halt to fragile moves towards pro-poor tenure reform cursorily described above. There was (and still is) substantive evidence of this in the slow-down of production of promised new national land policies where these have been pledged by sitting


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commissions, or by failure to entrench new policies in new law. Cases in point include The Gambia, Nigeria, Sierra Leone, Swaziland, Zambia, Malawi, Botswana, DRC, Cameroon, and Mauritania. In other cases, shortfall accountable at least in part to the land rush is where laws turn out to be significantly less people-friendly than originally posed (e.g. Lesotho (2010) and Burundi (2011)). It is also the case that some of those countries which did produce reformist pro-majority land law since 1990 have sought since to renege on provisions precisely to ease investor access further. Amendments, attempts to amend, and reinterpretation of articles have been used. In Ethiopia, for example, enablement for communities to secure off-farm lands under collective title (2005) has been reinterpreted as excluding the major resource in key regional states, pastoral lands, and increasingly, all off-farm lands. In Tanzania, contradictory definition of unoccupied and unused village lands in the two land laws of 1999 are being used to justify land takings along with much reduced compensation to communities. In Mozambique there was a clear attempt in 2012 to limit the size of area which a community may delimit and receive formal entitlement. In Uganda, legal provision of national and local government rights to valuable lands has been used to take community rangelands on this basis, including defeat of a legal challenge against this. The new South Sudan administration has also justified deals with investors for vast lands on grounds that the law does permit it to declare investment areas, with ambivalent requirement for local consent. On the other hand, the land rush is generating such increasing local reaction that subordination of majority rural rights shows signs of becoming less easy. This may prove to be the case even in the most recalcitrant of cases, such as in Cameroon and Gabon, both governed by leaders considered among “the world’s worst living dictators”.47 The surge in mining and timber concessions (mainly to China) and fewer but very large leases to American, European, and Malaysian rubber and oil palm developers is prompting a sharp rise in civil society mobilisation, and politicisation around land rights, along with substantial reprimand by international NGOs.48 If only for political reasons, those governments may later, if not sooner, feel bound to modify their land laws, much as across the other side of the world, Indonesia is being forced to do.49 47 D. Wallechinsky, The World’s 20 Worst Living Dictators (New York: Harpers Perennial, 2006). 48 M. Richards, Social and Environmental Impacts of Agricultural Large-Scale Land Acquisitions in Africa – With a Focus on West and Central Africa (Washington, DC: Rights and Resources Initiative, 2013). 49 Reference is made here to the landmark decision of Indonesia’s Constitutional Court in May 2013 (Nomor 35/PUU-X2012, Mahkamah Konstitusi Republik Indonesia) invalidating the Indonesian government’s claim to 40 million ha of forestland claimed under customary tenure (adat).


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The case is similar to one degree or another for all African states at this time. In Namibia, for example, popular reaction against accumulating capture of local grazing lands by elites (often from the capital) has boiled over in demands for the Communal Lands Reform Act, 2002 to be revisited. In Kenya, rewrite of a rejected Community Lands Bill of 2011 is stretching constitutional provisions to their limit, including proposals to facilitate restitution of forest and wildlife reserves. In Senegal, having failed to secure support for a law favouring investor interests, a redraft of new land law is underway. Meanwhile, despite the rush, Benin (2007) and Burkina Faso (2009) managed to see through fairly radical new land laws into enactment, protecting majority rural land interests, explicitly inclusive of valuable but vulnerable off-farm commons. In short, it is not clear whether the land rush will succeed in capturing large lands in the untitled sector and/or sustain this in the longer term. A longer term perspective may be necessary. To exemplify the case thus far, a snapshot of land law change in Liberia and Tanzania over the last century is provided below.

3.1.1 Acknowledging community lands in Liberia Liberia is exceptional as the only African state to have an American colonial history, strictly speaking in the form of state-backed colonisation societies formed in America following the liberation of African slaves, with the aim of returning volunteers to Africa. As was the case with merchant and mission enterprises in coastal Africa at the time, these societies formally purchased lands along the coast of what is now Liberia during 1820 and 1956 from local chiefdoms, signalling awareness that these lands were African property.50 It was not until the expansion of the Republic of Liberia (1847) into hinterlands after 1885 to limit 1880–1890s land grabs from Britain to the north (Sierra Leone) and from France from the south (Côte d’Ivoire) that the question arose as to whether Liberia should pay for these vast new territories inland. The Supreme Court eventually put an end to contentious debate within the Monrovian government as to the status and rights of Aborigines in these hinterlands (as they were called) in 1920, by ruling that it had been “unnecessary to seek or secure the willing consent of uncivilised people as through (their subordination) Aborigines gained civilisation”.51

50 L. Alden Wily, So Who Owns the Forest? (Monrovia (Sustainable Development Institute) and Brussels (FERN), 2007). 51 Ibid., 78, citing Chief Justice Dossen.


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Hinterland chiefs were less compliant, and within three years they had secured a law for the Hinterland which enabled the “right and title for an adequate area for farming and other enterprises essential to the necessities of the tribe …” to be retained (Suehn Conference of Hinterland Chiefs, 1923, entering into Regulations variously retained until 1949). Additionally, these areas could be converted into “a formal communal holding upon application … surveyed at the expense of the tribe concerned”. Further, “should the tribe become sufficiently advanced in the arts of civilization, it may petition Government for a division of the land into family holdings” of 25 acres each, held under fee simple (Article 66, Hinterland Law, 1949). Between 1924 and 1968 13 Hinterland chiefdoms secured nearly 1 million ha under communal Aboriginal Title Deeds (ibid: 117). Others either did not know of the opportunity, were insufficiently organised and solvent to take advantage of this, or were simply confident that Monrovia would not infringe upon their lands, even without deeds, as the same Regulation had additionally pledged. This more or less lasted until the land rush generated by the Open Door Policy announced by President Tubman in 1944; between 1951 and 1961 this resulted in a massive transfer of customary lands to foreign mining (iron ore), rubber and lumbering companies and a good deal less compensatory employment than promised, engendering the term “growth without development”, reflecting unparalleled growth but income accruing almost exclusively to foreign companies and Americo-Liberian elites.52 The Hinterland Law was quietly modified in 1956 in support of the policy, reducing the “right and title” of customary owners to “the use of as much public land in the area as required for farming and other enterprises essential to tribal necessities” (The Aborigines Law, Section 270, Title 1 Liberian Code of Laws, 1956–1958). This was confirmed by revisions to the longstanding Public Lands Act and by enactment of a new Land Registration Act in 1974. These established that individuals and communities in the Hinterland could acquire formal ownership only by buying (their own lands) from the State, now the titular owner. The value of pre-existing Aborigines Deeds was also thrown into doubt by the gazettement of 1.35 million ha of prime forestlands as National Forests in 1960–1961, extinguishing customary rights with no compensation. Land and resource grievances contributed to civil war (1983–2003), reaching a nadir in 2000 with a new forest law enacted by the Charles Taylor administration which

52 The term first coined by in Growth without Development: An Economic Survey of Liberia, Evanston, IL; Northwestern University Press, by R. Clower, F. Dalton, M. Harwitz and A. Walters, 1966.


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bluntly declared that all forest resources were Republic property; these cover nearly 60% of the country and accordingly roughly 60% of all community lands. Cancellation of all concessions was an obligatory pledge for Ellen Johnson Sirleaf to attain the Presidency in 2005, with production of a new Forest Act in 2006 and a Community Rights Law in Respect of Forest Lands in 2009. The latter acknowledges that forest resources on community lands belong to communities (Section 2.2). As important, the law defines community land as “[a]n area over which a community traditionally extends its proprietorship and jurisdiction, and is recognised as such by neighbouring communities” (Articles 1 and 2.2). Nevertheless, reissue of private concessions restarted promptly, so that today over half the country is leased for oil palm and rubber plantations or to lumbering and mining developments.53 Popular protest has been active, targeted especially to grants of 440,000 ha to Malaysian and American oil palm companies, and to comparable deals to mining giants Chevron Petroleum and BHP.54 Audits have shown that only 2 of 68 contracts are even lawful.55 This has coerced some retraction in Government protection of deals it has authorised including suspension of another set of unlawfully acquired Private Use Permits for timber extraction involving 2.5 million ha (23% of the country area). As in the 1950s, many of the beneficiaries are local elites, and sometimes from within the community.56 Civil society has not been shy to investigate and document cases, bringing home reality that local leaders within poor communities are not immune from taking advantage of poor governance of the law.57 While allegations of nepotism and corruption plague Sirleaf’s administration, Liberia – like Cameroon and many other states in the region – publicly committed to tenure reform. Liberia has pursued this most actively, with production of the new National Land Tenure Policy in June 2013.58 The Policy aims, inter alia, to put into law protection of customary rights as Private Land rights, whether recorded or not, and lays particular emphasis upon the identification of community land areas by rural communities to confirm these rights within

53 The National Land Commission acknowledged in January 2013 that 57.5% of the country area is under concession (13.8 million ha) (AFP, 21 January 2013). 54 S. Siakor, Uncertain Futures. The Impact of Sime Darby on Communities in Liberia (Monrovia: Sustainable Development Institute and World Rainforest Movement, 2012). 55 “Largest Liberian palm oil project is failing locals: study” available at: , accessed 1 May 2013. 56 Government of Liberia, Special Independent Investigating Body, 2012. Report on the Issuance of Private Use Permits (PUPS) in Liberia (Monrovia: 19th December 2012). 57 Sustainable Development Institute, Golden Veroleum Liberia. What Does the Contract Say? (Monrovia: Sustainable Development Institute, 2012). 58 See supra note 62.


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community-based governance regimes. This would return citizen land rights and localised land governance to broadly the situation they were in between 1923 and 1956. However, the Policy also pledges to make land available to commercial land investors. It also permits and therefore encourages customary landholders to sell their lands in the open market place. Both threaten attrition of community lands. The Policy also lacks procedures of discovery prior to state sale of lands, which it continues to contradictorily present as unowned public lands, even though these may be occupied and claimed as customary estates. Without formal obligation to discover rights prior to lease to investors, customary land holders will continue to find their lands taken under their feet.

3.1.2 Acknowledging community lands in Tanzania In highland Tanganyika, German settlement following the Berlin Act in 1855 was so rapacious that the British Government, also land grabbing to the north (Kenya) forced the drawing up of a Delimitation Treaty, 1888. This, together with fierce resistance by coastal Arab and indigenous inland communities to land grabbing by European profiteers forced Germany to declare a militarily backed protectorate over Tanganyika, Burundi, and Ruanda in 1891. By 1896 and 1903 Berlin was trying to halt the profiteering itself, requiring Germans to show cultivation of half the lands they had acquired through one means or another to qualify for freehold entitlement.59 Forced labour for plantations, road building, and railways and imposition of hut taxes added to local grievance, flight and rebellion, including at Maji Maji where 75,000 Africans were killed between 1905 and 1907 for refusing to grow cotton for Germany. Conciliatory plans by the liberal Governor Rechenberg (1906–1912) to enable natives to produce cash crops on their own land were rejected by the new plantation sector as reducing the forced labour they needed to support the home economy. More compliant and rewarded chiefs were also appointed to serve the Administration’s objectives.60 On the defeat of Germany in World War I, Tanganyika was handed over to Britain as a mandated territory, Ruanda and Burundi hived off and attached to the Belgian Congo Free State (1920). London immediately issued an Order in Council declaring that existing German-issued freeholds were intact and that the British Crown was owner of all untitled lands, and empowering its new Governor to issue only leaseholds (termed Rights of Occupancy) to new settlers (Land 59 W. Henderson, “German East Africa 1884–1918”, in V. Harlow and E. Chilver (eds.), History of East Africa (Volume 2, 1965). 60 Ibid.


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Ordinance, 1923). The League of Nations disputed this development as contrary to the mandate, which was to protect natives, not to colonise the territory.61 After five years of debate, the Land Ordinance was grudgingly modified, with redefinition of a Right of Occupancy to include “the title of a native community lawfully using or occupying land in accordance with native law and custom”, to be known as a Deemed Right of Occupancy (1928). In practice, there was no equivalency between formally Granted and Deemed rights, Africans continuing to be evicted at will to make way for new waves of settlers and investor schemes between 1930 and 1958. One of the more notorious was the short-lived groundnut scheme (1947–1951) that set out to convert five million acres into food and oil production for post-War Europe, failing, but in the process denuding one million acres of local community lands.62 Protests at land taking continued with major actions in 1937, 1946, 1953, and 1955 as land taking enterprise such as Uluguru and Sukumaland Schemes took more and more customary property. By the 1950s Tanganyikan farmers were “more ready to resist than they had been in 1905 … and better organized”.63 One dispute eventually came before the Trusteeship Council of the League of Nations (1952) but failed to counter British arguments that it concerned a strictly internal affair. This resulted in the most meagre of amendments to the Land Ordinance, with insertion of requirement that there be more consultation prior to orders to local populations to remove themselves from an area.64 Evictions continued for a host of schemes, and in addition, for extractive forest and wildlife reserves under a new Public Lands (Preserved Areas) Ordinance, 1954. Nationalisation characterised post-Independence (1961) law, the ultimate title of all land in the country vested in the President as Public Land. Nyerere argued that government was the rightful inheritor of pre-colonial communal tribal tenure, serving in effect as the new super-tribe. Freeholds were abolished in 1963, converted to 99-year leaseholds, in turn converted into Granted Rights of Occupancy in 1969 with limited powers to sell or sub-let. Additional laws were enacted to stamp out landlordism and land commoditisation and concentration, visibly active from the 1950s in most fertile areas.65 61 B. Chidzero, Tanganyika and International Trusteeship (Oxford: Oxford University Press, 1961). 62 D. Bryceson (1980); see supra note 54. 63 L. Cliffe, “Nationalism and the Reaction to Enforced Agricultural Change in Tanganyika during the Colonial Period in Tanganyika During the Colonial Period”, in L. Cliffe and J. Saul (eds.), (Volume 1, 1972), p. 13. 64 S. Mesaki, Recapping the Meru Land Case, Tanzania, 13 Global Journal of Human Social Sciences, Economics, no. 1 (2012), 1–11. 65 R. Feldman, Custom and Capitalism: Changes in the Basics of Land Tenure in Ismani, 10 Tanzania Journal of Development Studies, no. 3/4 (1974).


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In practice, community-based tenure steadily evolved in the 1970s and 1980s through radical new rural settlement and development policies which restructured scattered hamlets as formal villages with public services and their own governments, entrenched in The Villages and Ujamaa Villages (Designation, Registration and Administration) Act, 1975 and the Local Government (District Authorities) Act, 1982. New agricultural policy (1985, 1987) directed the Ministry of Lands to issue Village Land Titles to elected village governments, instructed them to in turn issue leaseholds to individual members of the community for their homesteads. Over 600 of 8,219 village governments received such deeds before the strategy was undermined as lacking legal backing. In the meantime, a contrary policy of land taking afflicted more and more communities, Government forcefully using its ultimate landlord powers aided by enactment of the Rural Lands (Planning and Utilization) Act, 1973. During the 1980s a series of Orders were passed under this law, extinguishing customary rights over large areas to make way for burgeoning state agribusinesses, or to hand over to related investor schemes such as the Canadian Government-backed wheat schemes of Mbulu, or to privatised seed bean and sisal developments, reminiscent of colonial large-scale land schemes of the 1910s, 1930s, and 1950s. Those evicted again began to take their grievances to court. In response the Regulation of Land Tenure (Established Villages) Act, 1992 was enacted, extinguishing all customary rights throughout the country. This was justified as necessary to remove the confusion as to the status of customary lands left when homesteaders had moved into aggregated villages during the 1970s.66 Critics were not slow to declare the law a poorly veiled attempt to rob the population of their lands, pointing to the structural adjustment demands of IMF loans to the Government as the trigger for this. The hasty passage of the law was not coincidental. It was designed to counteract the recommendations of a major land investigation commission, reporting to the President at the same time.67 The Commission urged the President to surrender ultimate title and to vest this directly in rural communities. It also recommended that title over non-village lands including parks and 66 C. Maina, “Rights to Communal Land Ownership”, Chapter 8 in C.P. Maina and H. KijoBisimba (eds.), Law and Justice in Tanzania: Quarter of a Century of the Court of Appeal (Dar es Salaam: Legal and Human Rights Centre and Mkuki na Nyota Publishers, 2007). 67 United Republic of Tanzania, Report of the Presidential Commission of Inquiry Into Land Matters. Volume I Land Policy and Land Tenure Structure (Dar es Salaam: The Ministry of Lands, Housing and Urban Development, Government of the United Republic of Tanzania in cooperation with The Scandinavian Institute of African Studies, Uppsala, Sweden, 1994), pp. 143–150.


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reserves be vested in an autonomous National Land Commission.68 Civil society support for the Commission report was substantial. In October 1993, the High Court, responding to claims against evictions for state-private schemes, ruled the Land Tenure Act of 1992 unconstitutional. This was upheld, following appeal by the Deputy Attorney General in 1994.69 Judge Nyalali of the Court of Appeal based his ruling upon a reinterpretation of the Land Ordinance, 1923, still in force, arguing that its intentions had always been to protect native land rights; We have considered this momentous issue with the judicial care it deserves. We realize that if the Deputy Attorney-General is correct, then most of the inhabitants of Tanzania mainland are no better than squatters in their own country. (Judgement, 1994, AttorneyGeneral versus Lohay Akonaay and Another, reported in [1995] 2 LRC 399).

During debates for new policy in 1995, Government conceded support for customary rights as property interests but stood firm against surrender of its ultimate title, although allowing caveat that this would be held henceforth on a trustee basis for the nation. Most other recommendations of the Commission were adopted into the new National Land Policy in 1995.70 Meanwhile neighbouring Uganda picked up the baton and abolished state tenure in its new postcivil war Constitution of the same year. One of the most important new strategies was to reverse gathering political intention by the post-Nyerere Administration of Tanzania to recentralise governance away from ever-more autonomous village governments. Instead, the National Land Policy declared that village governments would be the lawful land managers of all land matters including issue of customary title within the domains over which they respectively presided. Additionally, the Policy and eventual Village Land Act of 1999 counteracted rising government practice from the 1980s of recognising a village land area as limited to settlements and farms, excluding the community’s often expansive off-farm lands. Options were laid out through which a community could delimit its territory, including written negotiation and agreement by neighbouring communities (Section 7). Practically, no-man’s lands between villages, claimable by the State, disappeared. The law reinforced inclusion of communal lands by requiring that these be identified and described in a Register of Communal

68 Ibid. 69 Lohay Akonaay and Another v. The Hon. Attorney-General, High Court of Tanzania at Arusha, Miscellaneous Civil Cause No. 1 of 1993 (Unreported) and Court of Appeal of Tanzania, Civil Appeal No. 31 of 1994, reported in [1995] 2 LRC 399. 70 Ministry of Lands, Housing and Urban Development, National Land Policy (Dar es Salaam: United Republic of Tanzania, 1995).


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Village Land (Section 13) prior to allocation of individual title to villages for their homesteads. Loopholes remain through which Government and investors since have engineered takings of off-farm lands. One, mentioned earlier, is liability that remoter woodlands and rangelands can be defined as “unoccupied and unutilised village lands”, defined inconsistently by one of the land laws of 1999 as General Land (Government Land). Even without this, communities have been persuaded with promises of jobs and services to surrender off-farm lands to Government for re-issuance to investors.71 By 2009, President Kikwete, as chair of a major business sector organisation, published a new farming policy (Kilimo Kwanza Resolution, 2009) including a main objective to amend the Village Land Act of 1999 to more directly free up land for investors. This has not yet met support in the Parliament and may not in the foreseeable future, given growing public dismay at continuing evictions in service of public interest which turns out to be mainly private. These range from removing peri-urban communities for housing developments, to green grabs in the form of Controlled Hunting Areas overlaid on village lands, to a series of semi-coerced surrender of village lands to private companies for large-scale tree planting for companies to earn carbon credits and timber plantations.72 Enactment of the Land Use Planning Act, 2007, has inadvertently contributed to concern by laying down such complicated planning requirements for villages, that issue of Certificates of Village Land (CVL) has come almost to a halt; without this village governments are practically but not lawfully designated as land managers. By 2011, only 812 of 12,000 þ villages had received their CVL. The Land Use Planning Act of 2007 also eases the path through which Government may remove lands from a village, for planning purposes. This added to provisions from a 2004 amendment of the 1999 Land Act making it legal for investors who acquire village lands through Government to sub-lease and even sell on their lease. This has made speculative acquisitions easier, allowing investors to sell on the land for profit should their enterprises fail. Cases of this began to appear by 2010, in which villages that had been

71 C. Chachage, Land Acquisition and Accumulation in Tanzania. The Case of Morogoro, Iringa and Pwani Regions (Dar es Salaam, 2010). 72 Land Rights Research and Resources Initiative, Accumulation by Land Dispossession and Labour Devaluation in Tanzania. The Case of Biofuel and Forestry Investments in Kilwa and Kilolo (Dar es Salaam, 2010); C. Noe, Contesting Village Land. Uranium and Sport Hunting in Mbarang’andu Wildlife Management Area, Tanzania (Brighton: Land Deals Policy Initiative Working Paper 15, 2013).


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encouraged to surrender off-farm lands in return for social agreements that jobs and services would be provided, lost both lands and these benefits when failing companies sold on the land to other companies with whom the communities have no such deals.73 At the time of writing in mid-2013, public wariness against legal changes is at an all time high following the announcement of the Minister of Natural Resources and Tourism that 1,500 sq. km of village land belonging to pastoralists will be gazetted as a Controlled Hunting Area for lease to a Dubai hunting company, with which leading politicians have long had links.74 The reaction of affected pastoralists was so strong that the Minister felt compelled to publish a two-page defence in local and regional press, claiming he was hurt that Government’s generosity in allowing the 70,000 pastoralists affected to retain 2,500 sq. km was not appreciated (The East African, April 20– 26, 2013: 30–31). His position replays the Lockean thesis that citizens only secure rights to land as and when the State so recognises these, and for which the principal instrument has been registration of documented ownership or deeds testifying to transfers. This contradicts the terms of the Village Land Act, which does not require customary landholders to declare or register their rights. This suggests that even a decade after the law came into force, that its terms are not well-absorbed or accepted by all officials and politicians. Press and public reaction was swift and sharp. The most effective expression of discontent was not through sit-ins at government offices and Parliament during early 2013 but the widely filmed act of some thousands of women from the affected communities dumping their party cards in sack-loads on the steps of local ruling party offices. As the strength of opposition parties has steadily grown since the institution of a multi-party system in the early 1990s, and with elections around the corner in 2014, this unsettled the ruling party. The Prime Minister recalled the decision to gazette the Controlled Hunting Area “for further consultations” and follow-up communication with leaders of the affected communities suggests that no action will be taken in the meantime.75 This was not the result that communities were seeking, and they worry that once the election is passed, the President will use force to take their lands. This could prove difficult in practice, given the level of local publicity and politicisation engendered by the dispute.

73 “Report Exposes Dangers of Biofuel Deals in Tanzania as UK Firms Go Bust”, The East African, 7–13 November 2011: 33. 74 Maliasili Initiatives, Securing Community Land Rights. Experiences and Insights from Working to Secure Hunter-Gatherer and Pastoralist Land Rights in Northern Tanzania (Arusha, 2012). 75 Peter Msigwa, Opposition Representative for Natural Resources, 3rd May 2013 “Hotuba ya mesemaji mkuu wa kambi rasmi ya upinani mhe”, Dodoma: Parliamentary Address.


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4 Conclusions and policy implications Above sections illustrate the way in which law both helps and hinders fulfilment of majority rights, in immediate or evolving ways. They also show that the law is, no matter how tightly drafted, vulnerable to reinterpretation whether propoor or pro-elite. It is also apparent that the 1890–1990 century saw legal provision for majority land security began better than it ended. Support for land rights on untitled lands plummeted with each phase of state-endorsed land grabbing, and up to the present eats away at laws that purport to provide remedy. While the current rush exacerbates contestation, it does so in a context that has longer origins of social transformation, within which there are advances and setbacks, with rarely complete resolution as to the real safety of majority customary tenure. It is also evident that that public protest is not new. Yet, there is a fair chance that civil society could prove more successful today in its claims than enjoyed by past generations. Reasons for this would include that affected persons are being heard in a more supportive international environment as illustrated in the issue of voluntary guidelines on tenure security issues and their uptake by national governments thus far (see Bruentrup et al. and Paoloni and Onorati, this issue) and by the fact that international advocacy groups, such as Oxfam International, the International Land Coalition, and Global Witness, have brought the status of community-derived land rights, and especially that of off-farm lands, to the forefront of their agendas. Communities are also better linked among themselves and with national and public forums through freer press and ever-expanding mobile phone and internet access. They are also better equipped educationally to argue their case in legal and political terms. With advancing democratisation they also have firmer political voice, including the potential to bring down governments. Finally, the boundaries of what constitutes property is steadily escaping the confines of received laws, which seemed for much of the twentieth century to be irrevocably dependent upon state-given and state-law bound entitlement. This does not mean that the conflict of interest that underwrites social transformation and plays out broadly along rich and poor lines is dissolving. On the contrary, land rushes expectedly widen the divide. This is so much so that, as illustrated above, governments who introduced protective measures before the current rush show signs of regretting their benevolence. The fact that they are experiencing difficulty securing reversals or modifications in reform says more about the maturation of the state, including steady separation of executive and judicial powers and more obligatory distance between state and


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private interests, than a faux lessening of conflict of interest in modes of economic growth. Management of the conflict through compromise rather than hope that pressures will lessen seems the more reliable strategy. Progress on compromise strategies is however quite limited. For example, there is not much sign of movement towards paths of economic growth that enable and require commercial land users to lease directly from traditional owners, or to oblige companies and parastatals to offer significant shareholding in their commercial enterprises to those landowners. More positively, pursuit of the legal grounds upon which this might become necessary does seem to be accelerating. I will focus briefly below on the most important development in this regard, the right of communities to secure all or part of their lands in common, as a private owner holding the asset in undivided shares.

4.1 Legal constructs for collective property Broadly, there are two routes through which community-derived land rights may be secured: legal declamation or facilitated delimitation and entitlement.

4.1.1 Declamation or delimitation The former is superior in that through enforcement of the appropriate law, millions of rural landholders in a country can move overnight from being permissive occupants of unowned/state lands to being legal owners, without proof of title in registered documentation. This occurred in Botswana in 1968, in Uganda by constitutional provision in 1995, in Tanzania in 1999, and in Burkina Faso and South Sudan in 2009. Untitled landholders in South Africa also secured constitutional acknowledgement of their untitled property interests, entrenched in the Interim Protection of Land Rights Act, 1996. For this kind of blanket legal declamation to be effective, individuals, families, and communities holding unregistered community-derived rights need to be aware of the new legal protection and be availed easy and cheap paths to defend those rights. The law also needs to subject applications for private title to untitled lands to a rigorous procedure of discovery, to be sure that these lands are not already owned customarily. Given the passage of time, restitution of land or cash compensation is also needed to resolve many longstanding abuses of land taking power. In many laws not all these conditions are met.


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4.1.2 Domain or right-based delimitation Moreover, advantageous as declamation is, delimitation on the ground is necessary to refine and double-lock in principle rights. This in turn can occur on a case-by-case basis or through sweeping definition of vast domains within which customary rights are protected. The domain model builds under colonial practices of setting aside native reserves, particularly adopted in Anglophone colonies. Some tenure reforms in Africa have reconstructed these into as, for example, the former homelands in South Africa, tribal lands in Botswana, communal lands in Namibia, village lands in Tanzania or gestions des terroirs in Senegal. The domain approach – at least in theory – makes it less necessary for each customary landholder (individual, family, or community) to specifically identify and secure its parcels. Permission may be required, but to a remote tribal-wide land board, which in practice reports upwards to central Government more than to its constituent communities. Cases where the domain model does work well are Sierra Leone, Ghana, Togo, Burkina Faso, and Benin, and especially Tanzania. In the last case this is specifically due to each and every village community operating an elected government with full land powers, and which cannot easily, or legally, be sidestepped. In Sierra Leone and Ghana (and also Zambia), the fact that this authority is vested in chiefs does not necessarily advance accountability to community members, with sales of customary land by chiefs (lawfully or otherwise) quite widespread. It is also helpful in the Tanzanian land law paradigm that no non-member of the village may acquire land directly; this may only be accomplished through Government first acquiring that land from the village (which needs the latter’s permission) and then leasing it to the applicant. While legal shortcomings have been remarked above, communities arguably feel more protected in village lands in Tanzania than they may feel, for example, in Mozambique, Angola, and Uganda in the absence of empowered village-level land authority and associated historical development of community land areas. Practically speaking, customary landholders in such states need to identify and physically delimit their lands, to secure the same level of protection.

4.1.3 Creating domains for tenure security Not surprisingly, a quick route for this is first to identify the overall community land area and bring this under a single collective entitlement. This is the approach being followed by some communities in a number of African countries, usually with INGO or NGO assistance; this has been undertaken in a range


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of cases in South Africa (with help of the Communal Properties Association Act, 1996), in Mozambique, with now around 320 of 3,000 communities securing formal entitlements for community lands, and more recently undertaken in Madagascar, Angola, Kenya, Uganda, and Liberia. Needless to say, the pressure of large-scale land acquisitions encourages this further, with community land delimitation also being adopted in some countries precisely to coerce new policy and legal provisions; the case in Sudan, Cameroon, Democratic Republic of Congo, Ghana, Malawi, and Gabon. Differences exist in how easily delimitation of collectively owned lands is to undertake. Broadly, this is least easy where a community must form an alternative legal entity in order to be a legal person. This was the model adopted in South Africa by the Communal Property Associations Act, 1996, and adopted into the Uganda Land Act, 1998. The former saw minor uptake due to the complexities and costs involved, while no Ugandan community has yet seen fit to create a Communal Land Association for this purpose. More practical approaches are found in the laws of Tanzania, Burkina Faso, Benin, and South Sudan where first, a community exists by name as a legal person, and second, in the process of formalising customary rights the community may register these as owned by individuals, families, groups, or the whole community. Moreover, the procedure is to be performed at community level, using community-controlled land registers.

4.2 The old conundrum: communal or individual rights Legal developments such as described above bring to the fore necessary decision as to what legal forms collective entitlement should take. A first option is issue of collective title for the entire community land area, most immediately suitable to hunter-gatherers and pastoralists. This has most in common with Native Title as adopted in especially Latin America and Australasia to meet the demands of indigenous peoples, and where as a result some 20% of Australia, 15% of Bolivia, 13% of Brazil, 5% of New Zealand and 3.4% of the Philippines is now under formal native title. A second option is for the community to secure collective root title out of which individual and family usufructs are maintained, including those held effectively in perpetuity. A third option is for the community to seek collective entitlement only for those off-farm lands which it owns and wants to continue owning collectively, enabling individuals to secure private entitlement for their homesteads. A fourth approach is for a community to eschew any level of collective entitlement altogether, settling for entrenchment of community-based jurisdiction


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over all holdings within the traditional domain, to be administered on the basis of custom, or more accurately, modern-day community norms. This tends to appeal where little to no common lands remain but where communities prefer to use traditional rather than state laws to regulate their land relations, including to whom a villager may transfer his lands, without social sanction. Not all new land laws in Africa provide easily for these choices, best articulated in legislation in Tanzania, Burkina Faso, and Benin, and in other ways practised in Ghana in the form of customary freehold entitlements. Other new laws tend to make the choice for communities, equating customary land with an all-inclusive single collective title, which is the case for example in Mozambique and Angola. Alternatively, even best practice laws may weaken and confuse routes of formalisation by offering both statutory and customary routes of formalisation, the latter competing poorly with well-established statutory entitlements. This is the case in Uganda where customary landowners may entrench their rights under freehold or, less expensively, as a customary entitlement. This is similarly the case in Botswana in respect of private holdings. More seriously, while ample opportunity is given in Botswana and Namibia to formalise customary occupation of homesteads, no such opportunity is available in respect of off-farm lands which rural communities hold collectively. Instead, these vast lands in both countries are treated in effect as unowned and which senior authorities may allocate at will to individuals under leasehold tenure, and including for commercial livestock development purposes. Significant losses occur. For example, in the Okavango region of Namibia, over half the total land area has been rapidly “sold off” by land allocators to elites for establishment of vast private ranches, so that the local customary population is now squeezed into 45% of its traditional area.

4.3 The underlying conundrum: commoditisation Decisions around the above tend to also impinge profoundly upon the central conundrum for many officials and indeed, community members, as to whether acknowledgement of customary rights as real property interests means that the law must legalise outright sale of those interests as autonomous commodities? This has been debated in the making of new land laws in most African states, with not always certain resolve, and continues to be an issue in current tenure debates in Kenya, Liberia, and Namibia (and likely elsewhere). The reiterated concern is that this opens the way to wanton attrition in community lands, including distress sales by poor families. While chiefs in Ghana, Sierra Leone,


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Zambia, and Malawi may limit this, they may also be party to unwarranted sales of non-privatised community lands intended for later generations. Protection of rights from undue sales is probably best achieved in Tanzania, reminding us once again of the integral links between effective support for customary rights and developed community-based governance. This is because effectively limitations derive largely through a combination of active institutional governance within communities, legal strictures against transfers without the village government’s permission, the outlawing of sales to most outsiders (NGOs or churches operating in the village are an exception) without Government first acquiring the land, and a legal condition that each community must ensure that every household has land to live on.76 There is pressure to remove these limitations from both within and without rural communities. The latter is interesting, and pressure may derive from urban residents seeking assurance that their home areas are not being sold off by chiefs, leaders, or being lost through preeminent state rights to take those lands and reallocate them at will to wealthy private land seekers or investors. It is notable that some of the greatest pressure for protection of customary rights in countries like Kenya, Gabon, and Liberia has derived from urban youth and members of rural communities who return to their home villages only once a year. While this expresses the increasingly complex nature of integrated rural and urban society within which some members may work in cities and towns and never live in the village again, it also expresses evolving notions of, and claims to, ancestral lands, which governments dismiss at their peril. Leaving the village, and urbanisation in general, does not necessarily mean leaving one’s land rights behind. Moreover, these signal the emergence of new notions of property, which by definition the living residential community may never sell, but must hold for future generations.

4.4 Final word The main ideas that this paper has sought to illustrate are first, a reminder of the old truth that national law is an instrument of state and is constructed and interpreted in the image of its policies, and that as these alter, interpretation of the law also alters; second, that land rushes characterise expanding capitalism, and with history behind us, can be expected to not only repeat themselves from 76 L. Alden Wily, Community-Based Land Tenure Management. Questions and Answers about Tanzania’s New Village Land Act, 1999 (London: International Institute for Environment and Development, 2003).


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time to time but also impact negatively upon institutionally and legally weaker majority agrarian land interests; and third, that each land rush has its distinctions. In the current rush, this includes both a (partially) altered legal environment for majority land rights in the selected example region, Sub-Saharan Africa, and a fast-altering socio-political environment, with a stronger possibility of more protective legal remedy eventually emerging. Additionally, new forms and notions of what constitutes real property are being promoted. Fourth, this paper has also attempted to show that a crucial legal tenure shift is towards heightened demand and some delivery of customary security approaches which at last look beyond the farm, tackling the tenure of lands that have customarily been usually collectively owned at extended family and especially community level. This is a new ambition of land reform, and accelerated, if not originally prompted, by the land rush. Main debates and distinctions among country strategies thus far have been around how accessibly this is provided for. Resistance against legal routes of collective entitlement can also be anticipated as this extends to a degree that interferes with persisting landlordist ambitions of Governments. This is already being felt in countries where legal regimes best secure untitled customary lands in general. How far provisions for securitisation in principle and on-the-ground delimitation and entitlement of community lands in particular will multiply will be a main indicator within five to ten years as to how far land law is proving more friend than foe to majority rural poor, in the face of the contemporary land rush. In this regard, politics and politicisation through struggling but expanding devolutionary democratisation will be key.

References Alden Wily, L., Going Global: Securing the Commons at Scale, paper presented at International Land Coalition, Rights and Resources and Oxfam Conference on Land Rights (Bellagio, 2012). Alden Wily, L., Whose Land Are You Giving Away, Mr President? paper presented at the World Bank Conference on Land Policy and Administration (Washington, 2010), available at: Alden Wily, L., So Who Owns the Forest? (Monrovia (Sustainable Development Institute) and Brussels (FERN), 2007). Alden Wily, L., Land Rights Reform and Governance in Africa How to Make It Work in the 21st Century? (Nairobi, UNDP Drylands Development Centre, and Oslo, UNDP Governance Centre, 2006), available at:


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Alden Wily, L., Community-based land tenure management. Questions and Answers about Tanzania’s new Village Land Act, 1999 (London: International Institute for Environment and Development, 2003). Alden Wily, L., The Tragedy of Public Lands: The Fate of the Commons Under Global Commercial Pressure (Rome: International Land Coalition, 2011). Alden Wily, L., Land Rights in Gabon. Facing up to the Past – and the Present (Brussels: FERN, 2011). Alden Wily, L., “The Law is to Blame” Taking a Hard Look at the Vulnerable Status of Customary Land Rights in Africa, 42 Development and Change, no. 3 (2011). Alden Wily, L., Rights to Resources in Crisis: Reviewing the Fate of Customary Tenure in Africa (2011), available at: Alden Wily, L., Looking Back to See Forward: The Legal Niceties of Land Theft in Land Rushes, 39 Journal of Peasant Studies no. 3–4 (2012). Allan, T., “Introduction: Can Improving Returns to Food-Water in Africa Meet African Food Needs and the Needs of Other Consumers?”, in T. Allan, M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook of Land and Water Grabs in Africa Foreign Direct Investment and Food and Water Security (Abingdon: Routledge International Handbooks, 2013), pp. 1–8. Allan, T., M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook of Land and Water Grabs in Africa Foreign Direct Investment and Food and Water Security (London and New York: Routledge, 2013). Amanor, K.S., “Sustainable Development, Corporate Accumulation and Community Expropriation: Local and Natural Resources in West Africa”, in K.S. Amanor and S. Moyo (eds.), Land and Sustainable Development in Africa (London and New York: ZED Books, 2008). Amanor, K.S., “Securing Land Rights in Ghana”, in J.M. Ubink, A.J. Hoekema and W.J. Assies (eds.), Legalising Land Rights Local Practices, State Responses and Tenure Security in Africa, Asia and Latin America (Leiden: Leiden University Press, 2009). Angel, S., D. Parent, S. Civco and A. Blei, The Atlas of Urban Expansion (Cambridge, MA: Lincoln Institute of Land Policy, 2010). Cain, A. Angola, “Land Resources and Conflict”, in J. Unruh and R. Williams (eds.), Land and Post-Conflict Peacebuilding (London: Earthscan at Routledge, 2013). Anseeuw, W., L. Alden Wily, L. Cotula and M. Taylor, Land Rights and the Rush for Land. Findings of the Global Commercial Pressures on Land Research Project (International Institute for Environment and Development, CIRAD and International Land Coalition, 2012), available at: Anseeuw, W., M. Boche, T. Breu, M. Giger, J. Lay, P. Messerli and K. Nolte, Transnational Land Deals for Agriculture in the Global South. Analytical Report based on the Land Matrix Database (Rome: The International Land Coalition, University of Berne, CIRAD, GIGA and GIZ, 2012). Bayart, J.-F., The State in Africa The Politics of the Belly (Cambridge: Polity Press, 2009). Bernstein, H., Class Dynamics of Agrarian Change (Halifax and Winnepeg: Fernwood Publishing and Sterling, Virgina, Kumarin Press, 2010). Borras, S., J. Franco, and C. Wang, The Challenge of Global Governance of Land Grabbing: Changing International Agricultural Context and Competing Political Views and Strategies, 10 Globalizations, no. 1 (2013).


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Borras, S., C. Kay, S. Gomez and J. Wilkinson, Land Grabbing and Capitalist Accumulation: Key Features in Latin America, 33 Canadian Journal of Development Studies no. 4 (2012). Bryceson, D., Changes in Peasant Food Production and Food Supply in Relation to the Historical Development of Commodity Production in Pre-Colonial and Colonial Tanganyika, 7 Journal of Peasant Studies, no. 2 (1980). Chabal, P. and J.-P. Daloz, Africa Works Disorder as Political Instrument (Oxford, Bloomington, IN: The International African Institute with James Currey, 1999). Chachage, C., Land Acquisition and Accumulation in Tanzania. The Case of Morogoro, Iringa and Pwani Regions, Research Commissioned for Pelum Tanzania (Dar es Salaam, 2010), available at: , accessed 12 May 2011. Chanock, M., “Making Customary Law: Men, Women and the Courts in Colonial Northern Rhodesia”, in M. Hay and M. Wright (eds.), African Women and the Law (Boston: Boston University Press, African Studies Center, 1982). Chidzero, B., Tanganyika and International Trusteeship (Oxford: Oxford University Press, 1961). Cliffe, L., “Nationalism and the Reaction to Enforced Agricultural Change in Tanganyika during the Colonial Period in Tanganyika”, in L. Cliffe and J. Saul (eds.), Socialism in Tanzania, An Interdisciplinary Reader (Birmingham: East African Publishing House, Vol. 1, 1972). Corson, C. and I. MacDonald, Enclosing the global commons: the convention on biological diversity and green grabbing, 39 Journal of Peasant Studies no. 2 (2012). Dorsett, S., “Since Time Immemorial”: A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry, 3 Melbourne University Law Review (2002), pp. 1–26, available at: , accessed 14 July 2013. Emerton, L., Quantifying the Impacts of Barriers to Pro-Poor Forest Management, Livelihood and Landscape Strategy (Gland: IUCN, 2010). Fairhead, J., M. Leach and I. Scoones, Green Grabbing: A New Appropriation of Nature? 39 Journal of Peasant Studies no. 2 (2012). Feldman, R., Custom and Capitalism: Changes in the Basics of Land Tenure in Ismani, 10 Tanzania Journal of Development Studies, no. 3/4 (1974). Government of Liberia, Special Independent Investigating Body, 2012. Report on the Issuance of Private Use Permits (PUPS) in Liberia (Monrovia: 19 December 2012). Government of Liberia, National Land Tenure Policy (Monrovia: The National Land Commission, 2013). Gray, C., Colonial Rule and Crisis in Equatorial Africa. Southern Gabon ca. 1850–1950 (New York: University of Rochester Press, 2002). Greco, E., “Struggles and Resistance Against Land Dispossession in Africa: An overview”, in T. Allan, M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook of Land and Water Grabs in Africa Foreign direct investment and food and water security (Abingdon: Routledge International Handbooks, 2013), Part V. 5.4, pp. 456–468. Green Advocates and Forest Peoples Programme, We Who Live Here Own the Land (Monrovia, 2012). Henderson, W., “German East Africa 1884–1918”, in V. Harlow and E. Chilver with assistance of A. Smith (eds.), History of East Africa (Oxford: Clarendon Press, Volume 2, 1965), pp. 124–162. Hobsbawn, E., The Age of Empire 1875–1914 (London: Abacus Reprint 1997, 1987).


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Hopma, J., Planning in the Wind: The Failure of Jordanian Investments in Sudan. Land Deal Politics Initiative Working Paper No. 22 (2013). Iliffe, J., Tanganyika Under German Rule, 1905–1912 (Cambridge: Cambridge University Press, 1969). Maliasili Initiatives, Securing Community Land Rights. Experiences and Insights from Working to Secure Hunter-Gatherer and Pastoralist Land Rights in Northern Tanzania (Arusha, 2012). Jayne, T. and M. Muyanga, Land Constraints in Kenya’s Densely Populated Rural Areas: Implications for Food Policy and Institutional Reform, Food Security (2012), available at: accessed 1 July 2012, Vol. 4(3) pp. 399–421. Kanyinga, K., O. Lumumba and K.S. Amanor, “The Struggle for Sustainable Land Management and Democratic Development in Kenya: A History of Greed and Grievances, Chapter 4”, in K.S. Amanor and S. Moyo (eds.), Land and Sustainable Development in Africa (London and New York: ZED Books, 2008), pp. 100–123. Kanyongolo, F., “Law, Land and Sustainable Development in Malawi, Chapter 3, in K.S. Amanor and S. Moyo (eds.), Land & Sustainable Development in Africa, Zed Books, (London & New York, 2008), pp. 83–99. Kelly, A., Property and Negotiation in Waza National Park. Land Deals Politics Initiative Working Paper No. 21 (2013). Land Rights Research and Resources Initiative, Accumulation by Land Dispossession and Labour Devaluation in Tanzania. The Case of Biofuel and Forestry Investments in Kilwa and Kilolo (Dar es Salaam, 2010). Lee Peluso, N. and C. Lund, New Frontiers of Land Control: Introduction, 38 The Journal of Peasant Studies no. 4 (2011). Li, T. Murray, Centering Labor in the Land Grab Debate, 38 The Journal of Peasant Studies no. 2 (2011). Maina, C.P., “Rights to Communal Land Ownership, Chapter 8”, in C.P. Maina and H. Kijo-Bisimba (eds.), Law and Justice in Tanzania: Quarter of a Century of the Court of Appeal (Dar es Salaam: Legal and Human Rights Centre and Mkuki na Nyota Publishers, 2007). McMichael, P., Land Grabbing as Security Mercantilism in International Relations, 10 Globalizations no. 1 (2013). Mesaki, S., Recapping the Meru Land Case, Tanzania, 13 Global Journal of Human Social Sciences, Economics no. 1 (2012). Ministry of Lands, Housing and Urban Development, National Land Policy (Dar es Salaam: United Republic of Tanzania, 1995). Munden Project (The), The Financial Risks of Insecure Land Tenure An Investment View (Washington, DC: The Munden Project, 2012). Mwaura, K., The Failure of Corporate Governance in State-Owned Enterprises and the Need for Restructuring Governance in Fully and Partially Privatized Enterprises: The Case of Kenya, 31 Fordham International Law Journal no. 1 (2007). Neocosmos, M., Marx’s Third Class: Capitalist Landed Property and Capitalist Development, 13 The Journal of Peasant Studies no. 3 (2008). Noe, C., Contesting Village Land. Uranium and Sport Hunting in Mbarang’andu Wildlife Management Area, Tanzania. Land Deals Policy Initiative Working Paper 15 (2013). North, D., J. Wallis and B. Weingast, Violence and Social Orders A Conceptual Framework for Interpreting Recorded Human History (Cambridge: Cambridge University Press, 2009).


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Nyerere, J., “National Property”, in J. Nyerere (ed.), Freedom and Unity (Oxford: Oxford University Press, 1966). Palmer, R., Select Bibliography (1) on Reports on Biofuels, Land Rights in Africa and Global Land Grabbing, 2006–2013 (Oxford: Mokoro Ltd, 2013). Patnaik, U. and S. Moyo, The Agrarian Question in the Neoliberal Era Primitive Accumulation and the Peasantry (Dar es Salaam: Pambazuka Press, 2011). Potts, D., “Land Alienation under Colonial and White Settler Governments in Southern Africa: Historical Land ‘grabbing’”, Chapter 1.2, in T. Allan, M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook of Land and Water Grabs in Africa Foreign direct investment and food and water security, (Abingdon: Routledge International Handbooks, 2013), pp. 24–42. Ramaswamy, D., . Comments on Agricultural Investment in Ethiopia’ (2013), available at: , accessed 1 May 2013. Redfern, P., 2011. Report Exposes Dangers of Biofuel Deals in Tanzania as UK Firms Go Bust, The East African, 7–13 November 2011: 33. Richards, M., Social and Environmental Impacts of Agricultural Large-Scale Land Acquisitions in Africa – With a Focus on West and Central Africa (Washington, DC: Rights and Resources Initiative, 2013). Scoones, I., R. Hall, S. Borras, B. White and W. Wolford, The Politics of Evidence: Methodologies for Understanding the Global Land Rush, 40 Journal of Peasant Studies, no. 3 (2013). Scoones, I., N. Marongwe, B. Mavedzenge, F. Mahenehene, F. Murimbaribma and C. Sukume, Zimbabwe’s Land Reform Myths and Realities (Oxford: James Currey, Weaver Press, Boydell & Brewer Inc., and Jacana Media (Pty) Ltd, 2010). Siakor, S., Uncertain Futures. The Impact of Sime Darby on communities in Liberia (Monrovia: Sustainable Development Institute and World Rainforest Movement, 2012). Sustainable Development Institute, Golden Veroleum Liberia. What Does the Contract Say? (Monrovia: Sustainable Development Institute, 2012). Transnational Institute for European Coordination, Via Campesina and Hands off the Land Network, Land Concentration, Land Grabbing and People’s Struggles for Land (Amsterdam, 2013). United Republic of Tanzania, Report of the Presidential Commission of Inquiry Into Land Matters. Volume I Land Policy and Land Tenure Structure (Dar es Salaam: The Ministry of Lands, Housing and Urban Development, Government of the United Republic of Tanzania in cooperation with The Scandinavian Institute of African Studies, Uppsala, Sweden, 1994). Verhoven, H., “Sudan and Its Agricultural Revival: A Regional Breadbasket or Another Mirage in the Desert?” in Chapter 1.3 in T. Allan, M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook of Land and Water Grabs in Africa Foreign direct investment and food and water security (Abingdon: Routledge International Handbooks, 2013), pp. 43–56. Werner, W., A Brief History of Land Dispossession in Namibia, 19 Journal of Southern African Studies no. 1 (1993). Woertz, E., “The Global Food Crisis and the Gulf’s Question for Africa’s Agricultural Potential”, in Chapter 2.2, in T. Allan, M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook of Land and Water Grabs in Africa Foreign direct investment and food and water security, (Abingdon: Routledge International Handbooks, 2013). Johnson and Graham’s Lessee v. William M’Intosh, US Supreme Court; 21 U.S. (543) 1823. Largest Liberian palm oil project is failing locals: study, available at: , accessed 1 May 2013.



Article Salim Farrar*

Arab Acquisitions in Sub-Saharan Africa: Partners in Development? Abstract: If the NGOs and majority of western journalists are right, Arab investors in sub-Saharan Africa are no better than “cowboys” in a lawless “African Wild West” in which they land grab, raid resources and violate the human rights of the traditional owners of the land. This paper questions the basis for that consensus and looks more deeply at the evolving partnerships between African and Arab investors in the land context as African governments seek to chart their own particular paths of development. The paper takes a “macro” and contextual approach, linking historical, political economy and legal analysis with a case study Keywords: land grab, Arab investments, development partnerships DOI 10.1515/ldr-2014-0006

1 Introduction The majority of media commentaries and reports by prominent NGOs on recent land acquisitions in Africa, particularly in the context of “Arab” land acquisitions, describe a “rush for land” that “is out of control”1 and a “land grab” writ large.2 Oil-rich Persian Gulf monarchies, pockets laden with a seemingly endless flow of 1 Barbara Stocking, CEO Oxfam, quoted in Oxfam, “Land Sold Off in Law Decade Could Grow Enough Food to Feed a Billion People,” Press Release, 4 October 2012, available at: , accessed 12 November 2013. 2 See: GRAIN, World Bank Report on Land Grabbing: Beyond the Smoke and Mirrors, available at: , accessed 12 November 2013. The notion of “land grabbing” also has academic currency. See further: S. Borras and J. Franco, From Threat to Opportunity? Problems with the Idea of a “Code of Conduct” for Land Grabbing, 13 Yale Human Rights and Development Law Journal (2010), 507–523. *Corresponding author: Salim Farrar, Law School, University of Sydney, Camperdown, NSW, Australia, E-mail: [email protected]


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petrodollars and desperate to meet demands of their increasingly restive populations, stand accused of exploitation and buying up vast tracts of African land with no one or regulations to stop them; “Arab cowboys” in a lawless African “Wild West.”3 There are a number of problems with this analysis, some aspects of which have been discussed in recent academic commentaries. These include doubts over the accuracy of land acquisition data4; the arguable manipulation and selection of facts to fit unarticulated premises5; uncertainties over the precise meaning of a “land grab,”6 over what is being measured, and whether there has been any “grab” in actuality7; and, in addition, the relevance of law, rather than its absence, to this phenomenon.8 When we add to this mix widespread reports of a variety of African communities “dispossessed” of their lands, and that the perpetrators are “foreigners”,9 in particular “Arabs”,10 it is difficult to avoid the impression that facts are being selected, and distorted, to construct a particular image that fits popular prejudices. This is deeply troubling when we contextualise the debate within the law and development discourse and the current emphasis on “partnerships” and “inclusiveness” in development.11 If we regard development as a global (and local), rather than a “western” responsibility, to disproportionately cast blame 3 Jose Graziano da Silva, Head of the UN Food and Agriculture Organization (FAO), likened the situation to the “Wild West” and that a “sheriff” is needed to curb the “stampede.” See: FAO: Africa land grabs like “Wild West”, UPI Business News (11 February 2012), available at: , accessed 12 November 2013. 4 See: I. Scoones, R. Hall, S.M Borras Jr., B. White and W. Wolford, The Politics of Evidence: Methodologies for Understanding the Global Land Rush, 40 The Journal of Peasant Studies, no. (2013), 469–483. 5 Ibid., at 474. 6 L. Cotula, S. Vermeulen, R. Leonard and J. Keeley, Land Grab or Development Opportunity? Agricultural Investment and International Land Deals in Africa (London/Rome: IIED/FAO/IFAD, 2009), p. 6. 7 See further: E. Woertz, Oil for Food: The Global Food Crisis and the Middle East (Oxford: OUP, 2013), at chapter 8. 8 See further: L. Alden-Wily, Looking Back to see Forward: The Legal Niceties of Land Theft in Land Rushes, 39 The Journal of Peasant Studies, no. 3–4 (2012), 751–775; “The Law Is to Blame”: The Vulnerable Status of Common Property Rights in Sub-Saharan Africa, 42 Development and Change, no. 3 (2011), 733–752. 9 On the perceived culpability of foreigners in Ethiopia, see: J. Abbink, Land to the Foreigners’: Economic, Legal, and Socio-Cultural Aspects of New Land Acquisition Schemes in Ethiopia, 29 Journal of Contemporary African Studies, no. 4 (2011), 513–535. 10 Although the EC and the US have been active in land investment, China, South Korea and the Gulf appear more in media headlines. See further L. Cotula et al. (2009), supra note 6, p. 34. 11 See further: A. Norton and A. Rogerson, Inclusive and Sustainable Development: Challenges, Opportunities, Policies and Partnerships (ODI (UK) and DANIDA 2012), available


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on Arab (Chinese or South Korean) investors for trumping customary land rights provides a signal to policy makers that Arab (et al) investors (private, stateowned, national and international) cannot be trusted partners in African development and that measures need to be taken to limit their “malign” influence and to keep vulnerable African communities within a protective western embrace. The emphasis also distracts attention from the important role played by African governments12 themselves: in deciding what model of development they want to follow; their approach to landownership; the laws they have passed and decided to implement, and the development partners they wish to have. None of the above should be taken to imply that this paper is looking to explore whether Arab investors are, in practice, facilitating development (whether “economic” or “human”) in Africa. Nor should it be read as a study of Arab investors as “partners” in development with local communities. The actual impact, effectiveness and inclusivity of a development program are all important questions and require vigorous empirical and contextual analysis, as well as verification.13 It would also demand extensive and prolonged field work which is beyond my remit. The purpose and scope of this paper is more modest and focuses instead on broadening the terms of the debate and asking questions of an apparent consensus on the basis of freely available and accessible (though not independently verified) data and of the secondary literature; namely, is there unequivocal evidence of a neo-colonial “scramble” for Africa? And what role, if any, are Arab investors and institutions playing? Are they the “land grabbers” and “resource raiders” as portrayed, or is the picture more complex? In looking to answer these questions, not only do we need to re-visit the meaning of colonialism and its application to Africa but we also need to assess the degree of participation and control of Africans, in charting their own path of economic development. Though far from complete, it is hoped some limited conclusions can be drawn through an analyses of constitutional, land and investment laws and contracts in land deals. Legal and document analysis says nothing about actual implementation, but it may indicate powers to do so and thus bears on whether Africans are active partners in their own development. To explore these questions, the paper takes a “macro” and contextual approach, linking historical, political economy and legal analysis with a case study.

at: , accessed 29 October 2013. 12 See: T. Lavers, “Land Grab” as Development Strategy? The Political Economy of Agricultural Investment in Ethiopia, 39 The Journal of Peasant Studies, no. 1 (2012), 105–132. 13 There is a gap between actual implementation and announcement of programs. See further: Woertz (2007), supra note 7, pp. 228–229.


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2 From colonial past to post-colonial present: exploiting African development The ‘tripartite historical periodization’14 of pre-colonial, colonial and post-colonial rooted in the domination of the imperial powers in the late nineteenth century perhaps distorts the continuity of African history and over emphasises the impact of Europeanization on African development. “Colonialism” can mean a number of different things and need not refer only to European domination and exploitation of resources.15 But if we understand it in its broadest sense as the “implanting of settlements on a distant territory”,16 this has taken place on the African continent17 for more than two thousand years. Usually (but not always) preceded by military conquest and domination, it began with the Phoenicians and Greeks, continued with the Romans and Persians, then the Arabs18 and the Ottomans,19 and “finally” the Europeans. Africans have also internally colonised other African regions (and beyond) and were the original “frontiersmen”.20 Indigenous Africans and settlers have shared in the colonising process and shared in the development of human settlements in different regions of a harsh and sometimes unforgiving environment.21 They have fought, traded, inter-married, learned, worshipped, governed and suffered together. They have also blended and assimilated in varying degrees, subject to natural geographic and cultural boundaries.22

14 R. Reid and J. Parker, “African Histories: Past, Present and Future”, in R. Reid and J. Parker (eds.), The Oxford Handbook of Modern Africa (Oxford: OUP, 2013), p. 7. 15 A. Horning, “Insinuations: Framing a New Understanding of Colonialism”, in M. Naum and J.M. Nordin (eds.), Scandinavian Colonialism and the Rise of Modernity: Small Time Agents in a Global Arena (New York: Springer, 2013), p. 298. 16 E. Said, Culture and Imperialism (New York: Knopf, 1994), 9. 17 The references to “Africa” in this section refer almost exclusively to north, west and eastern coastal regions. We have little knowledge of the progress and process of human settlement south of the Sahara and away from the coastal areas because of the absence of written records and the unreliability of oral histories dating back more than three hundred years. See: J. Ilife, Africans: The History of a Continent (Cambridge: CUP, 2009), p. 5. 18 See: J.D. Fage and R.A. Oliver, The Cambridge History of Africa (Vol. 2, Cambridge: CUP, 2002), chapters 2–3 and 8. 19 B.A. Ogot (ed.), General History of Africa: Africa from the 16th to the 18th Century (Paris: UNESCO, 1999), chapter 6. 20 See: Ilife (2009), supra note 17, at chapter 1. 21 Ibid. 22 See: B.G. Martin, Arab Migrations to East Africa in Medieval Times, 7 The International Journal of African Historical Studies, no. 3 (1974), 367–390.



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Between the seventh and fourteenth centuries, gold, wheat, slaves and other merchantable items all made their way across the Sahara to the Middle East. Building on indigenous commercial networks, this facilitated maritime links between West, Central and East Africa that fostered Africa’s economic and social development and established thriving sea ports (especially in the North).23 According to John Iliffe, had it not been for the Black Death in the fourteenth century, which decimated African populations, the benefits could have spread more widely into the hinterlands.24 As it was, North Africa went into decline for the next five centuries and the first contact the tropical centre had with the outside world was with the slave trade, which further depleted African populations when it had barely recovered from the ravages of the plague.25 It is not this early period of colonialism with which critics of current land acquisitions in Africa wish to equate. For them, it is the later European period of domination and the historic “scramble for Africa” in the 1890s that is most instructive as it marks the emergence of global capitalism and the partitioning of African land and regions to suit global, rather than local, markets.26 European powers realized at an early stage the continent’s comparative advantage lay in agricultural export and plundered its natural resources. Rather than develop true market economies and the institutions in which the natural forces of competition could have benefited both locals and settlers (as they had in Europe, the Americas and Australasia), through force of arms and military threats, European colonials set up structures to extract resources27 and appropriated land to provide their investors not only with cheap land they could control but also with a very cheap source of local labour.28 Even in those countries where land remained in African ownership, the services sector was controlled and monopolised by the Europeans.29 This is not to deny some political and economic benefits to local peoples filtered down as a result of the abolition of the trans-Atlantic slave trade (which Europeans had begun); the provision of mechanised transport and infrastructure; the promotion of external trade through the lowering of tariffs (in the

23 Iliffe (2009), supra note 17, pp. 38–55. 24 Ibid., at 3. 25 Ibid. 26 See, in particular, Alden-Wily (2012), supra note 8. 27 Belgium’s rule of the Congo is a stock example. See further: D. Acemoglu, S. Johnson and J.A. Robinson, The Colonial Origins of Comparative Development: An Empirical Investigation, 91 The American Economic Review, no. 5 (2001), pp. 1369 and 1370. 28 See further, the discussions in R. Palmer and N. Parsons (eds.), The Roots of Rural Poverty in Central and Southern Africa (London: Heinemann, 1977). 29 G. Austin, “African Economic Development and Colonial Legacies”, 1 International Development Policy, no. 11 (2010), 8.


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British colonies), and western30 education.31 The systems and structures, however, were more to facilitate the extraction and production of goods to be sold in the European markets and to develop local elites favourable to serving European interests, than to promote and develop economies for local Africans. Even in post-colonial relations with “independent” Africa, where the terminology of “development” has supplanted “extraction,” aid programs – ostensibly to assist sovereign African states to implement their visions of development – have been often “tied”32 and designed to benefit the donors by providing guaranteed export markets for donor producers, with the effect of distorting local markets and depressing local entrepreneurialism. While this was most evident between 1973 and 1985, and fell back in the 1990s because of political pressures to “untie” aid, the phenomenon of “tied aid” has not disappeared.33 Research from the OECD itself acknowledges a sharp rise in tied aid since 2005 which was one of the key sticking points at the Busan Summit.34 Notwithstanding current UN agency preference for “development partnerships”35 and the need for developing countries to “own” their models of development,36 concern with exploitation and external control have deepened, especially

30 Islamic education had been a feature of West African countries, such as Timbuktu in Mali, for centuries prior to European domination. 31 Acemoglu et al. (2001), supra note 27, p. 1373. 32 The United States, with the exception of Portugal and Greece, has had the smallest proportion of untied aid of all DAC countries. See: E.J. Clay, M. Geddes and L. Natali, Untying Aid: Is It working? An Evaluation of the Implementation of the Paris Declaration and of the 2001 DAC Recommendation of Untying ODA to the LDCs (Copenhagen: Danish Institute for International Studies, 2009), p. 12. For a detailed analysis of the European approach to tied and untied aid, see: G. Serra, The Practice of Tying Development Aid: A Critical Appraisal from an International, WTO and EU Law Perspective, 4 LDR, no. 1 (2011), article 1. 33 Ibid., Clay et al. (2009), supra note 32. See also: OECD, Untying Aid: The Right to Choose, available at: , accessed 13 November 2013. 34 “Tied Aid Debate Tests Donor Ambitions Before Busan Summit”, Guardian, 1 November 2011, available at: , accessed 9 November 2013. The Busan Summit in 2011 was an attempt by world leaders to match aid effectiveness to the Millennium Development Goals to reduce global poverty and to give practical effect to the principles of the 2005 Paris Declaration. It was widely credited with helping to foster development partnerships with multiple actors, including civil society organisations. 35 For one of the many examples, see the United Nations, Sustainable Development Knowledge Platform, available at: , accessed 9 November 2013. 36 See further: S. Park and A. Vetterlein (eds.), Owning Development: Creating Policy Norms in the IMF and World Bank (Cambridge and New York: CUP, 2010).



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since the food crisis of 2008, as foreign powers have gone looking for resources. Western economies, in light of political pressures to reduce their dependency on Middle Eastern oil, have sought alternatives in the form of biofuels and looked to cultivate appropriate land. Similarly, China, with population pressures and a rapidly expanding economy, has been forced to go global in its search for a sustainable and cheap food supply. Also Arab states, especially those in the north of Africa and the Gulf Cooperation Council, have lost food and water self-sufficiency37 and increased their level of imports; a search that has assumed greater urgency in light of underlying economic causes of the “Arab Spring(s).”38 Africa has been an obvious target for this “land rush,”39 with 7.6% of the continent consisting of arable land, and only 60 persons per square mile (compared to 200 persons per square mile in Asia).40 The process of acquisition has also been made easier than in other continents because, as a general rule, “ownership” of the vast majority of the “available” land vests in the particular African state rather than with individual land owners.41 Chinese government– sponsored investors, big western corporations, Arab sovereign wealth funds and high net-worth individuals, have negotiated their terms directly with African governments and governors. If the negotiated land deals were in relation to land that was genuinely vacant and “terra nullius”, our discussion of these evolving partnerships in development would not be problematic and would provide a powerful counterargument to accusations of foreign exploitation and interference. Indeed, as the case study will illustrate, African governments have invited in foreign investors as part of their deliberate economic development strategies to boost foreign exchange earnings, to develop infrastructure, local employment opportunities and transfers of skills.42 The difficulty is that the majority of that 37 Saudi Arabia, for example, until 2007 was self-sufficient in wheat because of extensive subsidies and water-intensive production. Wheat production is planned to be phased out completely by 2016 because of the progressive depletion of non-renewable fossil water. See further: Cotula et al. (2009), supra note 6, p. 53. 38 It is not asserted that economic reasons alone caused the so-called Arab Springs. Rather they operated in combination with a number of other factors. For further discussion, see: M. Althani, The Arab Spring and the Gulf States: Time to Embrace Change (London: Profile Books, 2012), chapter 2; House of Commons, Foreign Affairs Committee, British Foreign Policy and the Arab Spring: Second Report of Session 2012–13 (Great Britain Parliament, 2012), pp. 17–18. 39 K. Deininger, D. Byerlee, J. Lindsay, A. Norton, H. Selod and M. Stickler, Rising Interest in Farmland: Can It Yield Sustainable and Equitable Benefits? World Bank Report (World Bank, 2010), p. 49. 40 D. Moyo, Winner Takes All: China’s Race for Resources (New York: Basic Books, 2012), p. 32. 41 According to the 2011 International Property Rights Index, African countries have the lowest incidence of property rights in the world. 42 Lavers (2012), supra note 12, p. 105.


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land is customarily owned by groups of pastoralists and rural communities who have not been properly consulted in the course of land deal negotiations, nor protected from eviction, or even compensated, because their rights are not generally recognized or incorporated into statutory land laws. Even where state laws have devolved decision-making to local regions, state authorities and political elites, rather than the local land users, make the decisions, dictate terms and permit investor concessions, whether this be in the interests of those communities or not.43 Given the scale and the speed at which projected land acquisitions in Africa are taking place,44 and some evidence of involuntary land seizures,45 accusations of a “new colonialism”46 are not without substance. But to what extent does this also hold true for Arab investments in Africa, especially in the subSaharan region? In this case, is it more about a genuine partnership and recognition of mutual interests, than of foreign exploitation and extraction of resources? If there is a form of colonialism, is it more in keeping with earlier patterns than late nineteenth century imperialism?

3 Arab engagement with Africa As detailed earlier, historical Arab engagement with Africa is not synonymous with colonial, in the sense of foreign exploitation for, first and foremost, many “Arabs” became “African”. They have been intimately linked, over a course of more than a thousand years, through language, culture and, of course, religion (Islam).47 Some North African “Arab” states proclaim they are “African”, with explicit references to that effect in Algerian, Tunisian, Libyan (in its 1951 Constitution at least), Moroccan and Mauritanian constitutions. Thirteen members of the Organisation of African Unity (OAU) are also Arabic-speaking and predominantly Muslim states; indeed, there is a close affinity between the OAU, the Arab League, the Gulf Cooperation Council (GCC) and the Organisation of

43 See Alden-Wiley (2011), supra note 8, p. 740. 44 Ibid. 45 E. Kifle, “Massive Sale of Ethiopian Farm Lands to Chinese and Arabs’”, Ethiopian Review, 3 June 2009, available at: , accessed 13 November 2013. 46 Among others, see: J. Baxter, “Africa’s Land and Family Farms – Up for Grabs?” Seedling, 13–16 January 2010. 47 See: Izzud-din Amar Musa, “Islam and Africa”, in Khair El-Din Haseeb (ed.), The Arabs in Africa (London: Croom Helm, 1985), pp. 58–74.



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Islamic Cooperation (OIC). Notwithstanding the historical legacy of slave raids, the trans-Saharan slave trade, and tensions in the early 1970s over the stance of some African states (e.g. Ethiopia) on Israeli occupation of Palestine, in more recent times they have shared similar stances on colonialism and economic development and tended to vote en bloc at the UN. A modern expression of state and institutional fraternity48 has been in development funding. Rather than treat all African countries equally, Arab and sub-Saharan African (i.e. largely Islamic) countries have been the preferred recipients,49 whether this has been channelled through national (e.g. of Kuwait, Saudi Arabia and UAE) or the multilateral agencies (Arab Bank for Economic Development in Africa; Arab Fund for Economic and Social Development, and the Islamic Development Bank – which is funded predominantly by the rich Arab states). The amounts have also been substantial (though with big drops during and immediately after Gulf wars).50 Further, in form, none of this aid, especially loans, has ever been tied to procurement of donor export goods and services; a factor clearly distinguishing western aid from Arab aid.51 Indeed, tying aid and loans to donor export industries would be anathema to Arab states who, being members of the Islamic Development Bank, and upholders of Islamic values (at least in principle), would fall foul of Islamic definitions of usury (“riba”) and would be “at war with God and His Messenger” if they did.52 This is not to say that religious motives have necessarily underpinned Arab relations with their African brethren53; political

48 The references to “fraternity” are directed at governmental and official levels and to recent political and institutional relationships. For an early critical account of the Arab-African relationship, see A. Akisanye, The Afro-Arab Alliance: Dream or Reality? 75 African Affairs, no. 301 (1976), 511–529. 49 D. Busari and T. Osunubi, Survey on the Arab Investment in Sub-Saharan Africa and Investment Opportunities Pertaining to Development (Dakar: UNIDEP, BADEA, 2009), p. 21. 50 E. Neumayer, Arab-Related Bilateral and Multilateral Sources of Development Finance: Issues, Trends and the Way Forward, 27 World Economy, no. 2 (2004), 281, at 285–288. 51 Ibid., at 294. See also: A.Y. Al-Qora’i, “The Scope of Actual Arab Political Interest in Africa”, in Khair El-Deen Haseeb (London: Croom Helm, 1985), p. 263. 52 In a famous saying of Prophet Muhammad, he is reported to have said: “Every loan that draws a benefit to the lender is usury”. Islamic scholars included not just interest but also loans made conditional upon the donors receiving benefits “in kind”, such as cheaper rents, services or products. See M. Umer Chapra, The Nature of Riba in Islam, 2 The Journal of Islamic Economics and Finance (Bangladesh), no. 1 (2006), 7, at 9. 53 The absence of tied aid could simply have been the result of limited Arab exports to African markets. In the 1980s and 1990s, Arab exporters looked predominantly to European and Industrial markets. See: Z. Iqbal (ed.), Macroeconomic Issues and Policies in the Middle East and North America (Washington, DC: IMF, 2001), p. 271.


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self-interest have clearly been factors –54 but common interests have also linked them. Examples of collaboration include the recent deal signed between the African Development Bank group and the Islamic Development Bank (IDB) in December 2010. This comprised US $500 million from each institution over a period of 3 years, starting from 2011, for co-financing sovereign projects in their Member Countries. The funding focuses on infrastructure, water and sanitation, regional integration, education, social infrastructure, institutional capacity building, training, gathering statistics, as well as food security.55 Perhaps of greater importance is the role the IDB is playing in managing regional food security and its attempts to offset the negative impacts of unstable food prices on the poorest of the African LDCs. Of US$ 1,158 million approved by IDB Board of Governors for development financing projects in its last session (the most it has ever dispensed), $275 million was allocated specifically for agriculture, livestock and water supplies in rural areas in a number of African Member Countries, including: Cameroon, Chad, Uganda, Benin, Burkina Faso, Mali, Niger, Mauritania and Togo.56 Examples of IDB sanctioned development projects in the region are given in the Tables 1 and 2.57 Until the late 1980s, however, fraternal and cultural bonds did not result in significant investment and trade flows.58 This changed in the 1990s, with a shift towards investment, especially in the direction of the North African states. In the last decade, the shift has been dramatic with extensive funds flowing to SubSaharan Africa (SSA) and increases in trade with the GCC alone rising by 170%.59 There are a number of reasons for this change. First, Arab investors, blessed with excess liquidity from favourable oil prices, have had to look for alternative investment destinations because of saturated markets in the West and Arab states.60 Second, SSA countries initiated several economic and political reforms

54 Neumayer (2004), supra note 50, p. 285. 55 “IsDB and AfDB Groups Sign New US$ 1 Billion Partnership MOU,” Islamic Development Bank, “News,” 23 December 2010, available at: , accessed 13 November 2013. 56 See the IDB News Portal, available at: , accessed 13 November 2013. 57 I have omitted many IDB projects and listed only those which tally with countries where there have been substantial land deals. 58 Busari and Osunubi (2009), supra note 49, p. 21. 59 See: “Africa an Uncertain Future,” Islamic Finance News, Supplements, available at: , accessed 13 November 2013. 60 Busari and Osunubi (2009), supra note 49, pp. 21–22.



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Table 1: Islamic development bank assistance to Islamic Africa since 2008 Country

Project details

Purpose

Mauritania 1) In 2010. US$ 9.4 million loan financing Education: new Nouakchott (interest-free). University Campus Project 2) In 2009, US$ 108 million for participation in the Rehabilitation Program of the National Company for Mineral Industry (SNIM) * The IDB Group has approved more than US$ 757 million (as of Feb 2013) for development projects in various development sectors in Mauritania, including several foreign trade operations in the country.61 Mali

1) 2010. US$ 40.8 million Loan and Istisna’a Development of agriculture and financing for the Djenne Agricultural improving water supply Development Project. 2) US$ 16 million Loan financing for the Kalabancoro Water Supply Project. *As of 24 June 2012, the Islamic Development Bank had approved projects worth US$ 756 million for 90 operations covering development projects, trade financing and private sector support.62

Sudan

2009. 1) US$ 12.6 million loan from Islamic Solidarity Fund for Development, Water Harvesting Project for Agro-Pastoral Development in Al-Gadarif State.

Securing enough water during dry season for both agricultural and pastoral purposes to improve life conditions for rural population and increase their income.

2) US$ 19.50 million Leasing financing for the Cotton Ginning Plants Project 3) US$ 11 million Leasing (Supplementary Financing) for the White Nile Sugar Project 4) US$ 10.3 million Instalment Sale for the Development Project of the Faculty of Engineering, University of Khartoum. 5) US$ 11.4 million Loan þ Technical Assistance Grant for Microfinance Support Program 6) Nov 2012, US$ 20.3 million for Rainwater Harvesting in White Nile, South Kordofan, Sinnar and Darfur States.

Assist the Faculty of Engineering in producing qualified engineering graduates equipped with needed skills to support community development

61 See the IDB News Portal, supra note 56. 62 Ibid.


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Table 2: Islamic development bank assistance to Ethiopia since 2008 Ethiopia 2009. 1) The BED approved US$ 16 million grant, 10 year program.

Support the Muslim community in Ethiopia through providing health and education services.

2) US$ 268,000 for Ethiopia Program: Expansion of Woldia Salem School, Woldia Town, Amhara Region.

Education.

3) US$ 330,000 Special Assistance Grant.

Expansion of Waliso Children Village, Waliso.

4) 2010. US$ 586,000 (grant) for the Construction of Alternative Basic Education (ABE) Centres in Afar Region.

Education.

5) US$ 302,000 for the Construction of a Children Village in Wolkite Town, SNNPR Region.

making the environment more investment friendly;63 and third, the pressing need for food security in Gulf States.64 GCC priorities have been reflected in the types of investment in SSA. While telecommunications, tourism, banking, transport and infrastructure have all been targeted,65 the focus of Arab investment has been on agriculture and land acquisition.66 Even before the most recent food crisis in 2008, Arab countries had shown particular interest in agricultural investment in Africa and had focused on countries where there existed clear fraternal ties, backed up by bilateral and regional investment treaties. A good example is provided by Sudan67 which deregulated and liberalised its investment framework, and provided numerous tax concessions for interested investors. It also joined the Common Market for Eastern and Southern Africa (COMESA) as well as the Arab Free Trade Agreement in 2007. Between 2000 and 2008, Arabs invested US $955.35 million, representing 91.3% of total foreign direct capital investment in agriculture in Sudan.68 While this 63 Ibid., p. 40. 64 Ibid., p. 41. 65 Ibid., pp. 22–28. 66 Ibid., pp. 28–30. 67 Sudan has been regarded as the “bread basket” of the Middle East for decades and was the target of failed program of investment and land acquisition in the 1970s. Arguably, it also contributed to the protracted civil war between the north and south. For further details, see Woertz (2013), supra note 7, pp. 169–171, 181–182. 68 A. Tanyeri-Abur and N.H. Elamin, International Investments in Agriculture in the Near East: Evidence from Egypt, Morocco and Sudan, (FAO, 2011), p. 107, available at: , accessed 31 October 2013.


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investment facilitated economic growth, due to the capital-intensive nature of production taken by Arab FDI and the tendency to favour already developed regions, it did not produce high levels of employment nor reduce income disparities across the country. Further, those sectors and sub-sectors which involved the least participation of the rural poor were those with the highest economic growth rates. Thus, while the Arab investment might have served the interests of government and certain elites, arguably it exacerbated the situations of the rural poor and societal tensions in an unstable environment.69

4 Arab land acquisitions since 2008 The Table 3 lists known land deals made between African governments and Arab corporations. It details the nature of the deal, the method of land acquisition (where applicable) as well as ostensible purposes. The table provides an overview of the Arab “land rush” since 2008, but it says nothing about the actual implementation of those deals. A cursory analysis of these investment agreements indicates state interests and participation from across the region: the Emirates, Egypt

Table 3: Arab land acquisitions since 2008 Company, Nationality/ investment nation

Deal

Purpose

30-year lease of 1,680,000 hectares; revenue sharing of 70–30% between company and government Citadel Capital Group (through 25 year land lease of 105,000 Concord Agriculture) (Egypt) hectares; annual lease fee $125,000 (10 year tax and South Sudan (Unity exemption) State) 2009

Al Ain National Wildlife (Emirati)/South Sudan (July 2008)

Tourism/Development

Food security: maize and sorghum production → Citadel Capital agreed to sell produce locally in order to serve local food insecurity.70 (continued )

69 Ibid., p. 121. 70 “South Sudan: More Cases of Land Grabs in South Sudan”, 26 March 2013, South Sudan News Agency, available at: , accessed 12 November 2013.


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Table 3: (Continued ) Company, Nationality/ investment nation Emirates Capital (merchant bank headquarters in Dubai) and GPS3 Investments (London based)/South Sudan

Abu Dhabi Fund for Development/Sudan Al Ghurair Foods (joint venture with a Gulf Agricultural company)/Sudan FORAS International Investment Company (Saudi Arabian)/Mali Libyan African Investment Portfolio (Libya) and Mali

MALIBYA (Libyan sovereign fund)/Mali

Deal

Purpose

“Strategic Development Fund” managed by Emirates Capital US$ 55 Billion 5 year development plan (phase 1) – multiple strategies umbrella development fund with subfunds for infrastructure, Agriculture, Energy and Mining.71 30,000 hectare lease; free72

Local development of infrastructure, foreign investment in agriculture, energy and mining.

100,000 hectares in 99-year lease 5,000 hectares (200,000 already acquired according to International Rice Research Institute) 100,000 hectares, free for 50 years, duties and activities tax exemption for 30 years, company tax exemption for 8 years, import tax exemption for 3 years 50-year lease of 100,000 hectares; land free, only water charged

Food security; export everything to UAE Food security; grain73

Food security; rice production

Food security: rice and cattle production

Food security; rice, tomato and livestock. Development: irrigation canal and roads (continued )

71 “Emirates Capital Mandated to Manage the First-Ever Investment Fund Initiated by GPS3 Investments and Dedicated to the Development of the New Nation of South Sudan”, 18 March 2013, Islamic Finance News, available at: , accessed 12 November 2013. 72 “Abu Dhabi Develops Food Farms in Sudan”, 2 July 2008, Guardian, available at: , accessed 12 November 2013. 73 “Al Ghurair to Seal 99-Year Farmland Lease in Sudan”, 19 February 2012, Gulf News, available at: , accessed 12 November 2013.



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Table 3: (Continued ) Company, Nationality/ investment nation Saudi Star Agriculture Development (SaudiEthiopian businessman) and Ethiopian government (2011) Sepahan Afrique (Iran)/Sierra Leone (Marampa and Buya Romende Chiefdoms)

The National Prawn Company and Al Rajhi International Company for Investment (Saudi) and Mauritania government

Deal

Purpose

50-year 10,000 hectare lease, Food; rice, maize, teff, sugarcane and oilseed. Rice free of rent; acquisition of primarily for export; sold 500,000 hectares planned domestically if not meeting export standards. Palm oil, rice production and 10,117 hectares (surface and minerals below surface rights) – promised land owners USD 20,000 in the first year, USD 40,000 in the second year, and USD 50,000 in the third year Food security (both nations), Memorandum of economic growth in Understanding – develop Mauritania, and investment agricultural sector of Mauritania; proposed projects goals for business74 estimated at value of 1 million

(through Citadel Capital75), Iran (though clearly not Arab), Libya and Saudi Arabia. The deals have not emerged from a vacuum, but have appeared from a stepping up of trading and diplomatic initiatives over the last decade. In several cases, their interests reflect geographical proximity and long-standing ties; between Egypt and Sudan, for example, as well as between Libya and Mali. In others, such as the Saudi Arabia–Mauritania/Mali and Iran- Sierra Leone relationships, the connections are not immediately obvious, but reflect increasing bilateral ties between their countries,76 and possibly geo-political strategy.77 74 “Government of Mauritania and Al-Rajhi Sign MOU to Transform the Food Security Roadmap in the Muslim World and Collaborate on $1bn Investments”, 11 February 2013, Islamic Finance News, available at: , accessed 12 November 2013. 75 This is a leading Egyptian investment company with a pan-African investment portfolio, as well as with investments in the Middle East. See further Citadel Capital website at: , accessed 13 November 2013. 76 “Iran-Sierra Leone Sign Three Government Cooperation Agreements”, 15 June, 2005, IRNA, available at: , accessed 12 November 2013. 77 Since its independence from France and overcoming of territorial claims with Morocco, Mauritania has openly encouraged aid and investment from Saudi Arabia, Kuwait and, before the Gulf Wars, from Iraq. But in June 1987, it severed diplomatic relations with Iran due to its


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Mauritania’s close ties with Saudi Arabia have developed without interruption to the extent of the forging of a security accord between the two nations in December 2011.78 Emirati companies have focused primarily on Sudan and South Sudan and reflect the influence of large numbers of Sudanese working in the different Emirates,79 and in the case of the latter, relaxed investment rules80 and specific government overtures to invest.81 African governments, therefore, have not been passive participants. They have actively engaged the Gulf Arabs, in particular, to invest in the region to fill the gap left by the Europeans and Americans reeling from the effects of the “credit crunch” and budgetary austerity measures. As a general rule, they also appear to retain overall control of these investments through government land lease disbursements, rather than by sale. This is typical of land alienation across most of Africa and reflects state ideology of patrimony.82 On the one hand, it might be argued that because of their length (25, 30, 50 and 99 years), these leases are as a good as a freehold, taking land out of the possession of current users for generations and thus appear exploitative.83 But on the other, they indicate the government’s intention that these investments should be for the long term and will demonstrate Arab commitment to the country through their willingness to engage with local government economic policy. On the side of Arab investors, this would support for Iraq. See: “Mauritania Cuts Iran Ties,” 29 June 1987, Los Angeles Times, available at: , accessed 12 November 2013. Relations and tentative trade links have been restored since. 78 “Mauritania, Saudi Arabia Sign Security Accord”, 5 December 2011, Magharebia, available at: , accessed 12 November 2013. 79 During the Sudanese elections in 2010, over 8000 voters were registered at three polling stations across the Emirates. See, “Sudanese Expats Cast Votes in the UAE”, 11 April 2010, Khaleej Times, available at: , accessed 12 November 2013. 80 New land policies were announced recently through the South Sudan Land Commission. These included guiding principles on the security of land rights, equitable access to land and provisions relating to security and diversity of tenure. See “Government adopts land policy in South Sudan”, 26 February 2013, Sudan Tribune, available at: , accessed 12 November 2013. 81 In March 2013, high-level talks took place between the South Sudanese Vice President and the UAE’s Minister of State for Foreign Affairs, over UAE funding and management (for a period of 25 years) of a new airport for its new capital in Tali and a new hospital, with a view to making the country an economic hub in Africa. See: “South Sudan Seeks Big Investments from UAE”, The National, 22 March 2013, available at: , accessed 12 November 2013. 82 See Alden Wily (2011), supra note 8, p. 736. 83 Ibid.



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be a meaningful compromise given the security situations in many of these countries, the high investment risk and the apparent preference of prominent Arab agro-businessmen not to invest and deploy large sums without actual transfers of ownership by sale.84 The power to insert clauses and conditions within leases, as well as to sanction breaches, is also potentially significant and an important control on the activities of the Arab investors. NGOs, such as the American-based Oakland Institute, however, are not ideologically predisposed towards global markets and these export-driven modes of economic development. They are more concerned at what they see as the exploitation, abuse and economic/social disruption caused to pastoralists and the possible dangers to local and food water security. They stress the terms of these leases are very favourable to Arab investors: quantity of land leased out is extensive (1,680,000 hectares in the case of the Al Ain National Wildlife project in South Sudan); transaction costs are low, with leases negotiated below market rates or for free (see Table 3, above) and in many cases governments are unable to redistribute a percentage of the profits through taxation revenue because of generous tax exemptions (especially the Libyan African Investment Portfolio in Mali). But the leases are not without potential local dividends. First, the land can be put to more productive use through use of better farming technologies if funds are mobilised. The populations of several of the target countries are found in rural areas with agriculture-based economic production and rely on rain-fed subsistence farming rather than modern methods.85 Second, local (in addition to expatriate) opportunities for employment and training is often promised (see the case study below). Third, new roads and infrastructure are also promised (e.g. in the case of Mali and South Sudan) that would facilitate not just transportation of Arab exports but trade more generally. Fourthly, not all agreements preclude domestic supply of produce, such as the agreement between the Saudi-based National Prawn Company and Al Rajhi International Company for Investment and the Mauritania government). There is no doubt that these African governments have provided incentives and preferential terms to Arab investors in these 84 In his interview with Saudi agro-businessman, Turki Faisal Rasheed, over Saudi land acquisitions in Sudan, Woertz notes: “Apart from smallholder ownership along the Nile most of the land in Sudan is nominally owned by the state. It can only be leased by foreigners, but not purchased. For Al-Rasheed this is a deal breaker. The payment of compensation to previous users of land that is slated for investment should be borne by the Sudanese government, he argues”. See “Oil for Food: The Global Food Crisis and the Middle East”, supra note 7, p. 234. 85 Ethiopia is a good example. See: E. Tamrat, Governance of Large Scale Agricultural Investments in Africa: the Case of Ethiopia, paper presented at the World Bank Conference on Land Policy and Administration (Washington, DC, 26–27 April 2010), p. 3.


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agreements, but these are common “investor-packages” at the global level between non-Arab and non-African investor-state relationships.86 The intention is to attract private foreign investment, with the hope that, in time, it will stimulate the local economy and bring the same levels of industrialisation and economic development to African countries as other more advanced economies, in Asia and elsewhere. It is not necessarily exploitative, or neo-colonial, in the sense that it is a local African government buy-in to market forces and global trends. The difficulty, however, is that Arab investors are not seeking to invest in a cultural vacuum and may well be ignorant or insensitive to local conflicts, ambiguities to land ownership and use, and, by practical necessity, defer to the decision-making of government official and corrupt local elites in order to achieve a deal. Whether “non-inclusive” negotiations will realise in practice the economic and social benefits both contracting parties envisage, is another matter. In the following section, I bring together the Arab-African development partnerships by way of a case study on Ethiopia. I recognise Ethiopia has been the subject of a number of previous studies and the “land grabbing” debate would be enriched through empirical work in other sub-Saharan countries. Ethiopia has been selected, however, because it is one of the “target investment countries” of the Gulf and Saudi Arabia87 and where land acquisition deals have been most documented and controversies recorded. Ethiopia is also different from Sudan and other target countries, such as Mali and Mauritania, because of its unique ethnic composition and structural placing in relation to the Muslim and Arab world. Although there exists a large Muslim minority (see below), Ethiopia is religiously pluralist, rather than an Arab/Muslim/African state, and controlled by a Christian majority. Nor is it a member of the Organisation of Islamic Cooperation (a 57-state grouping of generally Muslim majority nations) and party to its preferential trade agreements. The case study, therefore, adds further variables to the nature of the development partnerships being formed between Arab and sub-Saharan African states. However, this case study also has its obvious limitations and, as with earlier research, is still based on limited data. It has been difficult obtaining access to land deal agreements, and only one contractual agreement is subjected to any analysis in this study. Notwithstanding these limitations, in conjunction with the broader contextual and historical factors, I suggest some indications, if not definitive conclusions, can be drawn on the nature of the economic relationships 86 See further: L. Nottage and V. Bath (eds.), Foreign Investment and Dispute Resolution Law and Practice in Asia (Abingdon and New York: Routledge, 2012). 87 The other two being Pakistan and Sudan; see Woertz (2013), supra note 7, p. 197.



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forming and their potential, if not actual, effects on economic and social development.

5 Ethiopia Arguably the cradle of humanity, Ethiopia has a long and proud history (though tortured in recent times). Possibly of all African countries, Ethiopia is iconic of the continent’s cultural and religious diversity, with its blending of Christian, Islamic, Jewish and Animist traditions, both within and between 70 and 80 tribal affiliations (though some of the ethnic groups, such as the Amhara and the Somali, are also distinguished by their religion – Eastern Orthodox Christian and Muslim, respectively). There are no accurate statistics on the number of Muslims in Ethiopia or their proportion to the rest of the population. The most recent national census in 2007 estimated they comprise 28 million and 34% of total Ethiopian population; the Pew Forum Survey in 2009 put the figure at 30%88; others (the Supreme Council of Ethiopian Muslims) argue Muslims are in fact the majority at 52%.89 The links between Ethiopia and the Arab (Muslim) world are ancient and strong, with migration from the Arabic Peninsular reported during the time of Prophet Muhammad in the seventh century, and the praising of Ethiopia in Islamic texts as a “land of justice” where persecuted Muslims would find sanctuary. Current external relations are diplomatically sensitive and complicated by ongoing rivalries, regional upheavals and the emergence and departure of new government figures (following the recent death of former Prime Minister, Meles Zenawi). Nevertheless, political relations with Arab states, in particular with Saudi Arabia, have been strong and have further developed in recent years. Over the last decade, but especially from 2008, Ethiopia has received a lot of attention from foreign investors – a process that has been the result of changes in government policy in favour of large-scale farming, export-led growth, capitalist production and urbanisation (or “villagisation”, as the policy has

88 Pew Forum on Religion and Public Life, “Estimates of the Religious Make-up of 19 Sub-Saharan Countries from Various Sources” in “Islam and Christianity in Sub-Saharan Africa,” available at: , accessed 12 November 2013. 89 “Ethiopia: Muslims had lost touch with Muslim World”, 3 February 2002, International Islamic News Agency (IINA), Interview with Sheikh Abdul Rahman Hussein, President of Supreme Council of Ethiopian Muslims, available at: , accessed 12 November 2013.


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controversially come to be known).90 Although Western Europeans have been the biggest investors (an issue not well reported or debated in the media), Middle Eastern investors have been a close second with requests of 537,500 hectares of land up to 2011 (21.5% of the total requested).91 The majority of the land requested has not been in populated areas, and where it has touched already settled areas, generally speaking this has not been in the Afar and Somali regions92 – where the people are predominantly, if not exclusively, Muslim.93 Rather, much of the investment activity has been in the western Gambela region which, though sparsely populated, has a local indigenous population which is exclusively non-Muslim (84% Christian, 16% Animist). Given that the Middle Eastern investors are Muslim and that the Afar, in particular, are among the poorest in the region, neglect of their areas might seem surprising. But it indicates religious identity, as such, is not a determinant of investment (at least in Ethiopia) and it should be remembered that the IDB has been putting in development money in these regions in any event (see above table). It also points to the role of the Ethiopian government directing investment in accordance with government policy94 and Law. In order to promote an investor-friendly environment for both Arab and non-Arab investors, the Ethiopian government has effected changes to its laws and policies. In terms of investment law,95 the government has implemented an incentive-based system incorporating tax and customs duty exemptions (again, typical of countries that encourage Foreign Direct Investment for their economic development96). For Income tax, the law allows an exemption of 5 years if the investor exports

90 See: P. Baumgartner, J. Von Braun, D. Abebaw and M. Muller, “Impacts of Large-Scale Land Investments on Income, Prices, and Employment: Empirical Analyses in Ethiopia”, Annual World Bank Conference on land and Poverty (Washington, DC: The World Bank, 8–11 April 2013), p. 9. 91 Ibid., p. 10. 92 Ibid. 93 T. L. Gall and J. Hobby (eds.), “Afar”, in Worldmark Encyclopedia of Cultures and Daily Life (2nd ed., Vol. 1, Detroit: Gale, 2009). 94 The former Ethiopian Prime Minister expressed his desire to work closely with the IDB in the area of trade and investment sectors and wanted especially to enhance trade and investment relations with Saudi Arabia, which he thought would benefit both parties because of Ethiopia’s conducive investment environment. See, “Ethiopian Prime Minister holds talks with Islamic Dev’t Bank Group President” Sunday, 17 January 2010, Islamic Development Bank News portal, available at: , accessed 12 November 2013. 95 See: Article 9 of Investment Proclamation No. 280/2002. 96 See generally: Nottage and Bath (2012), supra note 86, and in particular, S., “Foreign Investment Laws and the Role of FDI in Malaysia’s ‘New’ Economic Model”, at chapter 8.



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more than 50% of the produce. This can be extended by the Investment Board to 7 years in “special circumstances” and for longer periods, according to the discretion of the Council of Ministers.97 Importation of capital goods, construction materials, spare parts and vehicles (depending on the nature of the investment and the decision of the Investment Board) can also be exempted from customs duty.98 As for land, under the Federal Constitution, ownership to land and all natural resources is exclusively vested in the Ethiopian state and the peoples of Ethiopia,99 and it is the state authorities, at Federal and regional levels, which allocates parcels of land. In fact, the Constitution and government proclamations go further and preclude all private alienation and transfers of land by sale or otherwise. Neither Arab investors nor local Ethiopians can own farmlands, outright or in partnership. Nor are Ethiopian communities, under current interpretations of Ethiopian law, able to own their lands “in common”.100 The Federal Constitution and proclamations under the constitution101 only permit “use rights”. Use rights include landholding rights for peasants and pastoralists to occupy and work on the land free of charge and without time limitation. These rights can be inherited and leased out102 but cannot be bought and sold, nor used as collateral for mortgage purposes in the case of agrarian lands. They are also subject to compulsory acquisition by the government, provided this is done for a public purpose. Immovable properties (physical structures) subjected to compulsory government acquisition must be compensated according to current market value, but this does not refer to the land itself.103 Where the government gives agrarian land used by pastoralists to foreign investors; therefore, there is no constitutional provision for compensation. While the Federal and regional constitutions, along with administrative regulations, provide certain legal protections and rights for the land-use rights of peasants and pastoralists, these constitutional rights still depend on implementing legislation and the provision of landholding certificates to verify

97 See: Council of Ministers Regulation on Investment Incentives and Investment Areas Reserved for Domestic Investors No. 84/2003, Articles 4 and 5. 98 Ibid., Article 8. 99 Federal Constitution, Article 40(3). 100 Proclamation No. 1/1995, the Constitution of the Federal Democratic Republic of Ethiopia. On a literal reading of Article 40(3), the Federal Constitution would not seem to rule out common ownership by ethnic communities, but this has not been subjected to any reported legal challenge in the courts. 101 See Proclamation: No 456/2005. 102 Ibid, Article 8(1). 103 Federal Constitution, Article 40(8).


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traditional land use and occupation. The problem is that the relevant implementing legislation does not exist country-wide, and state authorities do not accept customary tenure under this right.104 Notably, the investor – target areas of Gambela and Benishangul-Gumuz, are without the implementing legislation.105 So not only are the customary land-use rights of pastoralists uncertain and indeterminate, they are also particularly vulnerable to arbitrary appropriation and annexation without any compensation. Taken together with the fact the state controls legal entry of investments under an Investment Law which it tailors through a system of incentives and administrative discretion, these powers to appropriate and dispense land, according to terms that government authorities think fit, indicate both the strength of the Ethiopian government in the investment partnership with Arab investors, and the weakness of the traditional occupiers of agrarian land. An analysis of one of the controversial Land Rent contractual agreements in the Gambela province provides further evidence of the nature of this investment partnership. On 25 October 2010, the Ethiopian Ministry of Agriculture and Rural Development signed a land lease agreement with the Saudi Star Agricultural Development Plc.106 This agreement, which incorporates the Abobo District Administration of Gambela (and not just the government of the Federal Democratic Republic of Ethiopia), provides a renewable 50 year lease107 of 10,000 hectares of rural land for the purpose of rice farming.108 The annual lease rate is 300,000 Birr (approximately US$ 16,000) but is subject to revision by the government “as the need arises.”109 In addition to the conferring of a right to make productive use of the land, Saudi Star is also granted complete exemption from taxes on repatriation of profits and capital and from all import duties.110 In terms of its obligations under the lease, Saudi Star must conserve tree plantations that have not been cleared for earth works, apply appropriate methods to prevent soil erosion, observe and implement applicable legislation 104 Abbink (2011), supra note 9, p. 522. 105 Tamrat (2010), supra note 85, p. 6. 106 The agreement was originally signed in 2009 in the wake of the global food crisis, but following negotiation was replaced in 2010. Saudi Star is a private limited company incorporated under Ethiopian law and has the same liabilities, as well as rights, as all local firms. 107 Land Rent Contractual Agreement (LRCA) made between Ministry of Agriculture and Saudi Star Agricultural Development PLC, Article 2.1. 108 Ibid., Article 1.1. 109 Ibid., Article 2.2.4 and Article 5.5. 110 Above, Article 6.2.



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providing for natural resource conservation, as well as conduct environmental impact assessment reports.111 The agreement does not permit Saudi Star to hold onto the land without developing it (which otherwise would have had the negative effect of potentially depriving local pastoralists of valuable land without the compensation of economic development) and requires Saudi Star to develop one quarter of the land within the first year of the signing of the agreement and the receipt of all relevant government permits, and the entire 10,000 hectares within 4 years. If and when Saudi Star develops 75% or more of the land, it has the right to transfer that portion of the land to another individual or company, but only with the prior permit of the Ethiopian government.112 The remaining quarter of the land is non-transferable.113 The Ethiopian government arrogates to itself the “exclusive right”114 to monitor and supervise implementation of the agreement and can terminate the agreement for “justified good cause” subject to 6 months prior notice.115 The agreement does not mention what proportion of the produce of the rice farm will be allocated specifically for export (i.e. to Saudi Arabia) and how much for the domestic market. Nor does it contain a term for local jobs or obligate Saudi Star to provide necessary infrastructure, nearby health and medical facilities and transportation (though the agreement gives the company the right116). These details (which are clearly not terms of the contract) are mentioned on the Saudi Star’s owner’s website, promising 55% of the food produced will be for local markets, 5,000 jobs for locals by the end of 2013 (upon completion of the development) as well as a commitment to invest in infrastructure, including the building of roads and provision of vocational education.117 Looking at this agreement as a whole, and taking together its legal obligations, rights, exemptions and voluntary commitments, although it is very protective of the investor, it also comes with some benefits for the Ethiopian government and for locals, including local food production, provision of irrigation, jobs and

111 Ibid., Article 4.1 a) to d). 112 Ibid., Article 4.11. 113 Ibid., Article 4.12. 114 Ibid., Article 5. 115 Ibid., Article 5.4. 116 Ibid., Article 3.2. 117 See: M. Al-Amoudi’s personal website, available at: , accessed 13 November 2013. According to reports, the Ethiopian Ministry has required 40% of the yield to be sold domestically; see “Saudi Billionaire’s Company Will Invest 2.5 Billion in Ethiopia Rice Farm”, Bloomberg News, available at: , accessed 12 November 2013.


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training. If the land is not developed within the limited time frame because of budget squeezes or problems in deployment of capital, the government retains the power to take back the land, as it does for any other “good cause” which could include environmental damage or even adverse impact on local populations. It is difficult to argue, therefore, this amounts to a “land grab”. Even if this were a “land grab”, it would be problematic to call this a foreign “Arab” land grab, notwithstanding the name of the investment company. Saudi Star is owned by Mohamed al-Amoudi, who was born in Ethiopia and migrated to Saudi Arabia only after he was 19. While he is a now a Saudi citizen and his fortune derived from conglomerate business ventures overseas, the evidence does not point to colonial extraction for the benefit of a foreign power. He is Ethiopia’s largest single largest investor118 and professes himself a “development partner and a great son of his motherland – Ethiopia.”119 Through the investment vehicle of MIDROC Ethiopia Investment Group, he owns 41 other companies operating in all sectors of the Ethiopian economy, including agriculture and the agro-industry. Nevertheless, this Arab/Ethiopian partnership is defective and not inclusive. First, it assumes that the Ethiopian state authorities will monitor and properly supervise the implementation of the agreement and look after the interests of all those who might be affected. Given the close personal relationship between the former Ethiopian Prime Minister, Meles Zenawi, and Al-Amoudi, and political patronage possibly elsewhere within the landholding system,120 the fear is that the “Arab” investor’s interests would most likely override all complaints by locals notwithstanding the validity and legitimacy of those claims. Second, and contrary to the voluntary FAO guidelines on responsible governance on the tenure of land,121 the agreement fails to incorporate “due diligence” requirements and risk managements systems to avoid infringements of international human rights, as

118 See M. Al-Amoudi’s personal website, available at: , accessed 12 November 2013. 119 See the official MIDROC website, available at: , accessed 12 November 2013. Al-Amoudi is not without his critics and he has been fiercely condemned locally and in the diaspora for his support to controversial former PM Meles Zenawi. 120 See: L. German and G. Schonenveld, Contemporary Processes of Large-Scale Land Acquisitions in Sub-Saharan Africa: Legal Deficiency or Elite Capture of the Rule of Law? 48 World Development (2013), 1–18. 121 See: FAO, Voluntary Guidelines on the Responsible Governance of the Tenure of Land, Fisheries and Forests in the Context of National Food Security (FAO, 2012), available at: , accessed 12 November 2013.



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well as operational-level grievance mechanisms.122 If it had, perhaps the frustrations of local stakeholders might not have erupted into the violence that has scarred, and possibly jeopardised the future of this particular land deal.123

6 “Islamic” partnerships in development The Islamic context and motivation of Arab developmental assistance, trade and investment has not received a lot of attention in the academic literature, though the religious dimension is not without importance. The Holy Qur’an exhorts the believers to cooperate in virtuous matters and in obedience to God,124 as well as to invite others to the “all that is good”.125 In the past, both in Africa and in Asia, trade (as opposed to war) was one of the favoured methods of spreading the religion, and it is also being used in contemporary times. The prevalence of Islamic banks now opening up across the region,126 and the Islamic branding of brokered deals, at least through the Islamic Development Bank (e.g. the US$ 40.8 million interest-free loan and Istisna’a127 for the Djenne Agricultural Development Project in Mali) indicates the money being channelled for Africa’s economic development is not merely for furthering trade and economic development; it also has a symbolic and ideological function.

122 See: LRCA, op.cit., paragraphs 3.2 and 12.4. 123 Contractual negotiations on this land deal proceeded through the “Abobo district administration of Gambela Regional state”, rather than with affected land users directly. Some evidence suggests local opposition to relocations and allegations of human rights’ abuses. See further, “Ethiopia Army Commits Torture Rape”, Human Rights Watch, available at: , accessed 12 November 2013. The Ethiopian Government and Saudi Star vigorously refute these claims; see further, M. Al-Amoudi’s personal website, available at: , accessed 12 November 2013. Allegations of use of state violence to enforce unpopular land deals extend beyond the Saudi Star project but remain unsubstantiated, according to the chair of the UK Parliament’s International Development Committee, Sir Malcolm Bruce; see: “World Bank Told to Investigate Links to Ethiopia ‘Villagisation’ Project”, Guardian, 19 March 2013, available at: , accessed 13 November 2013. 124 Surah al-Ma’idah (Ch. 5), ayat (verse) 2. 125 See: Surah Al ‘Imran, ayat 104. 126 See generally, Busari and Osinubi (2009), supra note 49, and Islamic Finance News, Supplements, “Africa an Uncertain Future.” 127 This is a specialist term referring to an Islamic contract for commissions to manufacture.


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Historically, it was the mystic Sufi brotherhoods (turuq) who accompanied Muslim merchants along the ancient trading caravan routes, to show “all that is good”. Now it is the economically powerful and politically well-connected “Wahhabis”, “Salafis” and their radical off-shoots. As Madawi al-Rasheed notes, countries from the Arab Gulf, especially Saudi Arabia, have been using their newly available economic resources as a vehicle to promote Islam and “Wahhabist” interpretations of “all that is good.” Countries in Africa, Asia, Europe and the United States have all been the recipients of this largesse since the 1970s.128 In addition to the development aid and investment, Gulf States have sent and endorsed Islamic charities and missionaries to accompany “entrepreneurial elites” (such as Al-Amoudi in Ethiopia) that promote their commercial interests.129 In part, the establishment of religious missions overseas has been to provide employment opportunities for the otherwise unemployable graduates of the five religious universities in Saudi Arabia. But it has also been an expression of religious and “Wahhabist” zeal to convert the unknowing masses to their “scriptural” interpretations on the Islamic periphery.130 The ability to monitor and control the activities of these religious missionaries accompanying the modern trade caravans has been difficult even in Western countries which have well-developed security structures; in Africa, it has been almost impossible. From Ethiopia and Somalia in the East, to Mauritania, Mali and Nigeria in the West, this has also assumed more sinister proportions with local concerns Saudis have been funding “Salafist” (sic. “Wahhabist”) rebel movements, such as Ansar-Al Dine and Boko Haram,131 who have attacked the predominant and established Sufi orders and shrines and de-stabilised the country.132 It is doubtful this was ever an intended consequence of African invitations to Gulf Arabs to invest, but it has prompted governments (like Ethiopia) to adapt to perceived dangers133 and import Arab Sufi groups in order to counteract Wahhabi influence and to bolster their own

128 M. Al-Rasheed (ed.), Transnational Connections and the Arab Gulf (London and New York: Routledge, 2005), p. 2. 129 Ibid., pp. 6–7. 130 Birt, Y. in Al-Rasheed, ibid, 174. 131 See, “Mauritania, Saudi Arabia Sign Security Accord”, 5 December 2011, Magharebia, supra note 78. 132 “Mali crisis: Key players”, 12 March 2013, BBC NEWS, Africa, available at: , accessed 12 November 2013; T.R. Furnish, Sufis v. Salafis: Winning Friends and Interdicting Enemies in Islamic Africa, 1 RIMA Policy Papers, no. (2013). 133 “Are the Islamists Coming?” A. Fentaw, 28 May 2012, Transcend Media Service, available at: , accessed 12 November 2013.



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indigenous variety.134 As with trade and investment, African governments are trying to manage and balance their “religious development” partnerships too.

7 Conclusion Certain African states are now in the course of an economic (and possibly social) transition, perhaps of momentous proportions, and are increasingly benefitting from external trade relationships and foreign investment.135 The argument advanced in this paper is that the land deals with Arabs, and with non-Arabs, are not “neo-colonial land grabs”, but part of a self-shift of many African governments towards export-led growth models of development. As part of this re-orientation and to facilitate trade and investment, sub-Saharan countries, in particular, have renewed historical and cultural ties with the Arab world and have seen land and agrarian development in return for Arab food security as a useful vehicle. However, this has not been to the benefit of all communities in relevant countries, with peasants and pastoralists marginalised in the process. Missionary extremist groups have also been a damaging influence. The answer, however, is not to oppose these land deals and Arab investment per se but to apply international pressure on investor and investment state governments to further enhance participation and ownership rights, strengthen the partnerships that are developing organically and take further steps to monitor and manage ideological migration across borders. In addition to the World Bank and UN institutions, regional organisations such as the Organisation for African Unity, the Arab League and the Organisation for Islamic Cooperation (OIC) in particular, could all play a part. Given the OIC’s increasing prominence in recent years, especially in matters relating to trade and the involvement of the Islamic Development Bank, its engagement with

134 Furnish, ibid. For detailed analysis of the emergence of Wahhabism and Salafism in Ethiopia, see: T. Ostebo, Localising Salafism: Religious Change Among Oromo Muslims in Bale, Ethiopia (Leiden: Brill, 2012); P. Desplat and T. Ostebo (eds.), Muslim Ethiopia: The Christian Legacy, Identity Politics and Islamic Reformism (Basingstoke: Palgrave McMillan, 2013); H. Erlich, Saudi Arabia and Ethiopia: Islam, Christianity and Politics Entwined (Boulder, CO: Lynne Rienner, 2007). 135 This has not happened for the poorest LDCs, however, as FDI inflows have continued to decline (see: UNCTAD, “Global Trends Monitor”, No 8, 24 January 2012, available at: , accessed 12 November 2013.


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international human rights, and the ascendancy of Saudi Arabia’s Information Minister to the role of Secretary General of the OIC in 2014,136 it would be a positive and not inconceivable step for the OIC to draw up a suitable code of “Islamic ethics” in land investment deals. This could be adopted by all member states, especially Saudi Arabia, and could incorporate and elaborate upon the Islamic concepts of shura (consultation) and shirkah (partnership) and facilitate the economic and human development of all relevant stakeholders.

References Abbink, J., Land to the Foreigners’: Economic, Legal, and Socio-Cultural Aspects of New Land Acquisition Schemes in Ethiopia, 29 Journal of Contemporary African Studies, no. 4 (2011). Acemoglu, D., S. Johnson, and J.A. Robinson, The Colonial Origins of Comparative Development: An Empirical Investigation, 91 The American Economic Review, no. 5 (2001). Akisanye, A., The Afro-Arab Alliance: Dream or Reality?, 75 African Affairs, no. 301 (1976). Al-Amoudi, M., (personal website): , accessed 12 November 2013. Al-Arabia, OIC Elects Former Saudi Information Minister as New Secretary General (7 February 2013), available at: , accessed 6 November 2013. Alden-Wiley, L., The Law Is to Blame’: The Vulnerable Status of Common Property Rights in SubSaharan Africa, 42 Development and Change, no. 3 (2011). Alden-Wiley, L., Looking Back to See Forward: The Legal Niceties of Land Theft in Land Rushes, 39 The Journal of Peasant Studies, no. 3–4 (2012). Al-Rasheed, M. (ed.), Transnational Connections and the Arab Gulf (London and New York: Routledge, 2005). Althani, M., The Arab Spring and the Gulf States: Time to Embrace Change (London: Profile Books, 2012). Austin, G., African Economic Development and Colonial Legacies, 1 International Development Policy (2010). Baumgartner, P., J. Von Braun, D. Abebaw, and M. Muller, Impacts of Large–Scale Land Investments on Income, Prices, and Employment: Empirical Analyses in Ethiopia, annual world bank conference on land and poverty (8–11 April 2013, Washington, DC: The World Bank). Baxter, J., “Africa’s Land and Family Farms – Up for Grabs?” Seedling, 13 January 2010. BBC NEWS, Africa, Mali Crisis: Key Players (12 March 2013), available at: , accessed 12 November 2013. Bloomberg News Agency, Saudi Billionaire’s Company Will Invest 2.5 Billion in Ethiopia Rice Farm (23 March 2011), available at: , accessed 12 November 2013. Borras, S., and J. Franco, From Threat to Opportunity? Problems with the Idea of a “Code of Conduct” for Land Grabbing, 13 Yale Human Rights and Development Law Journal (2010). Busari, D., and T. Osunubi, Survey on the Arab Investment in Sub-Saharan Africa and Investment Opportunities Pertaining to Development (Dakar: UNIDEP, BADEA, 2009). Citadel Capital website, available at: , accessed 13 November 2013. Clay, E.J., M. Geddes, and L. Natali, Untying Aid: Is It Working? An Evaluation of the Implementation of the Paris Declaration and of the 2001 DAC Recommendation of Untying ODA to the LDCs (Copenhagen: Danish Institute for International Studies, 2009). Cotula, L., S. Vermeulen, R. Leonard, and J. Keeley, Land Grab or Development Opportunity? Agricultural Investment and International Land Deals in Africa (London and Rome: IIED/ FAO/IFAD, 2009). Deininger, K., D. Byerlee, J. Lindsay, A. Norton, H. Selod, and M Stickler, Rising Interest in Farmland: Can It Yield Sustainable and Equitable Benefits? World Bank Report (World Bank, 2011), available at: https://openknowledge.worldbank.org/handle/10986/2263 Licence: CC BY 3.0/GO. Desplat, P., and T. Ostebo (eds.), Muslim Ethiopia: The Christian Legacy, Identity Politics and Islamic Reformism (Basingstoke: Palgrave McMillan, 2013). Erlich, H., Saudi Arabia and Ethiopia: Islam, Christianity and Politics Entwined (Boulder: Lynne Rienner, 2007). Fage, J.D., and R.A. Oliver, The Cambridge History of Africa, Vol. 2 (Cambridge: CUP, 2002). FAO, Voluntary Guidelines on the Responsible Governance of the Tenure of Land, Fisheries and Forests in the Context of National Food Security (2012), available at: , accessed 12 November 2013. Furnish, T.R., Sufis v. Salafis: Winning Friends and Interdicting Enemies in Islamic Africa, 1 RIMA Policy Papers, no. 1 (2013), available at: , accessed 12 November 2013. Gall, T.L., and J. Hobby (eds.), “Afar”, in Worldmark Encyclopedia of Cultures and Daily Life (2nd ed., Vol. 1, Detroit: Gale, 2009). German, L., and G. Schonenveld, Contemporary Processes of Large-Scale Land Acquisitions in Sub-Saharan Africa: Legal Deficiency or Elite Capture of the Rule of Law?, 48 World Development (2013). GRAIN, World Bank Report on Land Grabbing: Beyond the Smoke and Mirrors, available at: , accessed 12 November 2013. Guardian, World Bank Told to Investigate Links to Ethiopia “Villagisation” Project (19 March 2013), available at: , accessed 13 November 2013. Guardian, Abu Dhabi Develops Food Farms in Sudan (2 July 2008), available at: , accessed 12 November 2013. Gulf News, Al Ghurair to Seal 99-Year Farmland Lease in Sudan (19 February 2012), available at: , accessed 12 November 2013.


272

S. Farrar

Horning, A., “Insinuations: Framing a New Understanding of Colonialism”, in M. Naum and J.M. Nordin (eds.), Scandinavian Colonialism and the Rise of Modernity: Small Time Agents in a Global Arena (New York: Springer, 2013). House of Commons, Foreign Affairs Committee, British Foreign Policy and the Arab Spring: Second Report of Session 2012–13 (Great Britain Parliament, 2012). Human Rights Watch, Ethiopia Army Commits Torture and Rape, available at: , accessed 12 November 2013. Ilife, J., Africans: The History of a Continent (Cambridge: CUP, 2009). International Islamic News Agency (IINA), Ethiopia: Muslims Had Lost Touch with Muslim World (3 February 2002), Interview with Sheikh Abdul Rahman Hussein, President of Supreme Council of Ethiopian Muslims, available at: , accessed 12 November 2013. Iqbal, Z. (ed.), Macroeconomic Issues and Policies in the Middle East and North America (Washington, DC: IMF, 2001). IRNA, Iran- Sierra Leone Sign Three Government Cooperation Agreements (15 June 2005), available at: , accessed 12 November 2013. Islamic Development Bank News portal, Ethiopian Prime Minister Holds Talks with Islamic Dev’t Bank Group President (Sunday, 17 January 2010), available at: , accessed 12 November 2013. Islamic Finance News, Emirates Capital Mandated to Manage the First-Ever Investment Fund Initiated by GPS3 Investments and Dedicated to the Development of the New Nation of South Sudan (18 March 2013), available at: , accessed 12 November 2013. Islamic Finance News, Government of Mauritania and Al-Rajhi Sign MOU to Transform the Food Security Roadmap in the Muslim World and Collaborate on $1bn Investments (11 February 2013), available at: , accessed 12 November 2013. Islamic Finance News, Supplements, Africa an Uncertain Future, available at: , accessed 12 November 2013. Khaleej Times, Sudanese Expats Cast Votes in the UAE (11 April 2010), available at: , accessed 12 November 2013. Kifle, E., “Massive Sale of Ethiopian Farm Lands to Chinese and Arabs”, Ethiopian Review, 3 June 2009, available at: , accessed 12 November 2013. Lavers, T., Land Grab’ as Development Strategy? The Political Economy of Agricultural Investment in Ethiopia, 39 The Journal of Peasant Studies, no. 1 (2012). Los Angeles Times, Mauritania Cuts Iran Ties (29 June 1987), available at: , accessed 12 November 2013. Magharebia, Mauritania, Saudi Arabia Sign Security Accord (5 December 2011), available at: , accessed 12 November 2013.



273

Martin, B.G., Arab Migrations to East Africa in Medieval Times, 7 The International Journal of African Historical Studies, no. 3 (1974). Moyo, D., Winner Takes All: China’s Race for Resources (New York: Basic Books, 2012). Musa, I.A., “Islam and Africa”, in Khair El-Din Haseeb (ed.), The Arabs in Africa (London: Croom Helm, 1985). Neumayer, E., Arab-Related Bilateral and Multilateral Sources of Development Finance: Issues, Trends and the Way Forward, 27 World economy, no. 2 (2004). Norton, A., and A. Rogerson, Inclusive and Sustainable Development: Challenges, Opportunities, Policies and Partnerships (ODI (UK) and DANIDA, 2012), available at: , accessed 12 November 2013. Nottage, L., and V. Bath (eds.), Foreign Investment and Dispute Resolution Law and Practice in Asia (Abingdon and New York: Routledge, 2012). Ogot, B.A. (ed.), General History of Africa: Africa from the 16th to the 18th Century (Paris: UNESCO, 1999). Ostebo, T., Localising Salafism: Religious Change Among Oromo Muslims in Bale, Ethiopia (Leiden: Brill, 2012). Oxfam, “Land Sold Off in Law Decade Could Grow Enough Food to Feed a Billion People”, Press Release, 4 October 2012, available at: , accessed 12 November 2013. Palmer, R., and N. Parsons (eds.), The Roots of Rural Poverty in Central and Southern Africa (London: Heinemann, 1977). Park, S., and A. Vetterlein (eds.), Owning Development: Creating Policy Norms in the IMF and World Bank (Cambridge and New York: CUP, 2010). Pew Forum on Religion and Public Life, Estimates of the Religious Make-up of 19 Sub-Saharan Countries From Various Sources, in “Islam and Christianity in Sub-Saharan Africa,” available at: , accessed 12 November 2013. Reid, R., and J. Parker (eds.), The Oxford Handbook of Modern Africa (Oxford: OUP, 2013). Said, E., Culture and Imperialism (New York: Knopf, 1994). Scoones, I., R. Hall, S.M. Borras Jr., B. White, and W. Wolford, The Politics of Evidence: Methodologies for Understanding the Global Land Rush, 40 The Journal of Peasant Studies, no. 3 (2013). Serra, G., The Practice of Tying Development Aid: A Critical Appraisal From an International, WTO and EU Law Perspective, 4 LDR, no. 1 (2011). South Sudan News Agency, South Sudan: More Cases of Land Grabs in South Sudan (26 March 2013), available at: , accessed 12 November 2013. Sudan Tribune, Government Adopts Land Policy in South Sudan (26 February 2013), available at: , accessed 12 November 2013. Tamrat, E., Governance of Large Scale Agricultural Investments in Africa: The Case of Ethiopia, paper presented at the World Bank Conference on Land Policy and Administration (Washington, DC, 26–27 April 2010). Tanyeri-Abur, A., and N.H. Elamin. International Investments in Agriculture in the Near East: Evidence From Egypt, Morocco and Sudan (FAO, 2011), available at: , accessed 12 November 2013. The National, South Sudan Seeks Big Investments from UAE (22 March 2013), available at: , accessed 12 November 2013. Transcend Media Service, Fentaw, A. “Are the Islamists Coming?” (28 May 2012), available at: , accessed 12 November 2013. UNCTAD, Global Trends Monitor, No 8 (24 January 2012), available at: , accessed 12 November 2013. United Nations, Sustainable Development Knowledge Platform, available at: , accessed 9 November 2013. UPI Business News, FAO: Africa Land Grabs Like “Wild West” (11 February 2012), available at: , accessed 12 November 2013. Woertz, E., Oil for Food: The Global Food Crisis and the Middle East (Oxford: OUP, 2013).


LDR


Article Emel Zerrouk* and Andreas Neef

The Media Discourse of Land Grabbing and Resistance During Myanmar’s Legal Reformation: The Monywa Copper Mine Abstract: This study is conducted using a legal and an in-text media study approach in order to deconstruct the discourse of land grabbing around the Monywa Copper Mine. Its aim is to analyze the discourse surrounding the resistance to expansion and to shed light on the current trends and any new opportunities that may exist in reforming Myanmar. To this end, we explore the limits of local resistance and draw lessons that can be applied to the increasing cases of land grabbing around the country. The expansion of the Monywa copper mine, the nation’s largest, located on the Letpadaung mountain range, north of Naypidaw, Myanmar, affects some 26 villages in the area and creates further concerns over land grabbing. Mining operations in the area have been growing since the 1980s, the project being the result of a joint investment by the government and international extraction companies. Similar projects on other ranges nearby have left the surrounding areas polluted and unproductive. Since July 2012, the local communities surrounding the Monywa copper mines have been protesting the rush of recent land grabbing, “insufficient” compensation and the environmental damage related to the project. Their resistance gained considerable momentum, peaking in November 2012 and escalating in clashes with local authorities, but diminishing with the launching of an investigative committee, a benchmark achievement. Against the backdrop of Myanmar’s legal reformation, these activities are both shaping and being shaped by the shifting political, institutional and social currents of the country. Keywords: land grabbing, media, Myanmar, copper mine, protest DOI 10.1515/ldr-2014-0008

*Corresponding author: Emel Zerrouk, Graduate School of Global Environmental Studies, Kyoto University, Kyoto, Japan, E-mail: [email protected] Andreas Neef, University of Auckland, Auckland, New Zealand, E-mail: [email protected]


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1 Introduction Conflict over land, and the right to use it, is as old as community. Yet in recent years, in the face of the global financial crisis and growing food and energy security concerns, global attention to land conflicts triggered by “land grabbing” has increased. Land grabbing stresses the in-equitability of land tenure change that occurs within a nation, but in conjunction with national, regional and international actors. In Myanmar, a growing number of these cases have been recorded. One notable and evidently news-worthy example is that of the Letpadaung copper mine1 expansion project, which has been behind a series of land grabs that have led to nationwide protests. In a nation where around a third of the population lives below the poverty line,2 and 70% are dependent on the agricultural sector for their livelihoods, issues of land and the right to it are essential. This paper explores discourses surrounding the copper mine expansion project’s land grabs and related protests as produced by the national and international media.3 In other words, it analyzes how media has chosen to give weight to certain themes related to this case of land grabbing over time and then contextualizes the results within the changing legal landscape of the country. The subject of the research is the “discourse” enveloping the Letpadaung expansion project land grabs; it is not simply an analysis of how “land grabbing” as a general theme is portrayed by media. This wider focus on the media discourse as a whole is needed to capture the complexity of the de facto situation and to appreciate the dynamics of the various interplaying themes picked up by media. It is also due, in part, to the realization that there are many actors contributing to this situation who may not consider it a case of land grabbing. Although the catalyst behind this issue is land grabbing, other themes have come to dominate media discourse as the reporting of the case increased. For example, the perceived spread of negative environmental impacts, expanding onto the grabbed lands, and within its previous boundaries, is the second most consistently reported narrative by volume, and the most consistent of the entire protest period for reporting across all media groups.

1 One of the four mine sites of the Monywa Copper Mine. 2 According to 2007 figures. The CIA World Factbook, Burma, available at: , accessed 28 April 2013. 3 “Media” here signifies newspapers made available in English language for the sake of consistency between news broadcasters, both national and international, and in that must be available in online format.


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Initially, the media focus lay on the theme of land grabbing itself, expounding on the inequitable confiscation of land and the inadequate – if any – compensation locals received. Concurrently, farmers were reportedly concerned about the spread of pollution and the environmental damage caused by the project, which is to be of a similar scale to those developed on other Monywa mine sites. These themes dominated media coverage until early November 2012 when support for the protest swelled nationally and media coverage highlighted the “act of protesting” in a reforming regime. However, the violent raid of protest camps on 29 November again shifted the focus of the discourse. Outrage over the number of monks injured in the raid rekindled unpleasant national memories. Resistance to the Letpadaung mine expansion was then heralded as both a moral point and a religious issue with some media sources referencing violent crackdowns of the Junta days. In general, the Letpadaung expansion land grab narrative has been taken up as a test case by which to judge how the government and its reforms will handle similar cases appearing around the country.

2 Methodology The media examination in this paper was conducted using a systematic qualitative data analysis approach, with elements of media theory and semantics used to deconstruct the discourse. In order to identify a trend in media discourse surrounding this case of land grabbing, the main themes addressed in 177 articles, from the pre-September 2012 period (when coverage began), until 22 March 2013, were coded and their density recorded. The major themes identified as being significantly developing over time in the articles were: the issues of land grabbing itself, compensation, (negative) environmental impact, protest as an expression of public freedom, the violent protest camp raid of 29 November 2012, and the injured monks caught in the raid (Figure 1). In order for an article to be “tagged” with one of the codes presented in Figure 1, it needed to be entirely dedicated to the theme or contain a section dealing with the theme explicitly. For example, in the case of the “Land Grabbing” theme, a detailed reference to the land grabbing/confiscation/seizure4 of land “needed” for the mine expansion project was required.

4 Due most likely to political sensitivities, CG and MG have not used the term “land grab,” whereas other sources have used this term in various articles interchangeably with “land confiscation” and “land seizure”.


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LDR


Figure 1: Main themes and relationships expressed over time

Specifically to those lands whose “re-appropriation”5 is contested by their prior tenants. Simply containing the term in a sentence that lists the various issues surrounding the Monywa mine controversy was deemed insufficient. While some themes are interconnected, they may also work in parallel. The reported concern of locals over compensation, with a specific focus on the lack of/or need for further compensation for re-appropriated land, has been caused by both land grabbing and fears of spreading negative environmental impact. However, the “theme” of compensation is sometimes set-aside by media as newsworthy in and of itself, e.g. a piece on the general lack of financial equitability identified where an agreement was signed/agreed to and a re-evaluation was being called for. Thus it cannot always be conflated with either of the “land grabbing” or “environmental impact” themes and is isolated as a separate, yet connected theme. Similarly, the theme of “environmental impact” stands alone even as it is connected to both concerns for related compensation and land grabbing. Essentially this theme covers the negative environmental impacts that the expansion project will purportedly affect and what may be needed to 5 Re-appropriation, as under national law, all land belongs to the State, and tenure is the “ownership” of land-use rights. Thus from the government perspective, and according to the new Land Law of 2012, if the project is deemed in the best interest of the State, i.e. as a State project, there are grounds for the re-appropriation of land, with necessary compensation given. The amount is not specified, however a recent decision by the Letpadaung Investigation Committee suggests that all land be compensated according to current market values, but the application of the findings by the implementation committee has chosen a different standard to follow.


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mitigate them. Thus an article may be coded with this theme whether its description of environmental impact is linked to the land grab theme or as a separate concern more closely connected to, for example, feelings of place, nostalgia and a desire for continuity. Reporting of the Letpadaung Mine land grab case increased along with national protest. The theme of “protest” became so popular that coding it as a theme on equal footing with the others was not productive, as it was mentioned with some emphasis in the majority of articles related to the land grab case, becoming more of a “meta-theme”. However, two themes related to the protest experience that caused large shifts in the discourse arose at the end of November 2012. The “violent protest camp raid” (crackdown/raid) theme grew out of the 29 November pre-dawn raid of the then remaining six protest camps in the Letpadaung area by riot police. Connected to this is the theme of the “injured monks.” Articles focused on the injuries sustained by monks who had participated in the protest and as a result of the raid, as well as on their follow-up care. This theme carries heavy cathartic elements that further encouraged protests and drew national and international media attention to the Monywa case. It is not surprising then that these two themes dominated the discourse surrounding the Letpadaung land grab case for subsequent months, overshadowing previous themes. The news sources chosen for this analysis belong to five groups of media (see Table 1): Myanmar-based national media (MB), Foreign-based local news (FBL), Chinese government-backed national media (CG), and international media. This spread was chosen to circumvent the bias that may exist within an individual news group and to capture the breadth as well as the depth of reporting. Three news sources per category were selected, with an attempt to unify within each group the political/social stances of each, the intended audience.

Table 1: News sources by group for the period of pre-September 2012–22 March 2013, number of articles in brackets MB: Myanmar-Based (55) The New Light of Myanmar (17) The Myanmar Times (18) Eleven News (20)

CG: Chinese Gov. Backed (27) Global Times (4)

FBL: Foreign-based Local News (62) The Irrawaddy (47)

International: (19) Al Jazeera (4)

China Securities (3)

Mizzima (15)

BBC (11)

Xinhua (20)

DVB: Democratic Voice of Burma (26)

The New York Times (4)


280

Number of Articles

70 60

LDR


62 55

Total Articles

50

Land Grab

40

20 10 0

29

28

30

Compensation 27

21 12 10 15 12

6 6 2

MB Media

FBL Media

Environment

19

11

9 4

CG Media

11 2 5

Crackdown/Raid Injured Monks

International Media

Figure 2: Number of articles by media source available

The volume of sources treating this subject by group is indicative of the “distance” each source group has from the subject. The MB and FBL sources (55 and 62 articles respectively) are from newspapers that focused specifically on Myanmar related news, while the CG and international news sources are not (Figure 2). Historically each of the three MB news sources has had to pass through government monitoring/censorship before release. However, new legislation was passed in 2012 to begin the easing of censorship and government control. Reporters without borders ranked Myanmar 151, out of 179 countries at the beginning of 2013, which is a move up of 18 places since 2012 and its highest ever.6 The New Light of Myanmar is the country’s oldest and only English language daily, established in 1993, and – previously reputed as being a vehicle for Junta propaganda – it is reportedly taking advantage of the reforms to redefine itself as an open state-run newspaper.7 The other two MB newspapers, Eleven and The Myanmar Times are weeklies with slightly different histories, but both must still pass the rigours of the state media machine. The Myanmar Times was co-founded in 2000 by an Australian and Burmese investor making it the only news source in Myanmar to hold foreign investment.8 Mizzima, like DVB and Irrawaddy are based outside of Myanmar, in India, Norway and Thailand

6 Reporters Without Borders, Press Freedom Index 2013, available at: , accessed 1 May 2013. 7 Reuters, “In Reforming Myanmar, a Junta Mouthpiece Gates a Makeover”, available at: , accessed 28 April 2013. 8 Centre for Independent Reporting, “Burma: Co-Founder of Myanmar Times on Trial”, available at: , accessed 26 April 2013.


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respectively and are outside of the censorship of MB sources. However, one FBL news source, Mizzima, founded by Burmese expatriates, is to become an accepted privately owned MB media source under the reforms.9 The Monywa Copper Mine is jointly funded by China, thus the protests concerning the mine have a direct impact on their interests. Bringing Chinese media discourse into the study shifts the frame and adds a further dimension that, like the international media sources, demonstrates the scale of the issue. CG media also has a history of censorship that mirrors that of Myanmar,10 thus setting it up as a counterpoise to FBL and international media sources. As international media covers a wider area and a broader readership, it shows the “popularity” of the Letpadaung land grab and protest case; 19 articles, from only three sources, covered the issue.11 It would not be an overstatement to say that one of the key reasons why this case of land grabbing has gained support and why it has had some demands met, e.g. for further compensation, has been due to its systematic and wellrounded media coverage, both in the local and in the international spheres. Perception being a fickle friend in politics, media can play a key role in influencing actions taken by governments seeking to impress. However, while locals and protesters use media to their advantage, and vice versa, it is necessary to properly contextualize the themes that both players push or else readers of such media-created discourse risk falling into the trap of misinformation circulated for the sake of forming opinions, a dangerous use of rhetoric.12 In an effort to avoid that eventuality, this paper aims to outline how the discourse developed and evolved in parallel with the country’s political, social, environmental and legal regime context.

9 Reporters without Borders, Retrograde Bill Threatens Tentative Progress, available at: , accessed 28 April 2013. 10 According to Reporters without Borders China ranks below Myanmar in freedom of the press, at 173th place. Reporters Without Borders (2013), supra note 6. 11 The BBC has covered the issue more consistently; this is not surprising considering Britain’s historical relationship with Myanmar and the BBC’s recent coverage of Aung San Suu Kyi’s movements to and from England and elsewhere. 12 Aristotle defines rhetoric as the available means of persuasion, for others it is often the antithesis of truth, for some it is merely clever literary devises and language. Becky McLaughlin and Bob Coleman (eds.), Everyday Theory a Contemporary Reader (New York: Pearson Longman, 2005), p. 806.


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3 Monywa copper mine history and general facts In 1922, a British geological team identified the presence of what seemed to be copper in the river beds of the lower Chindwin River.13 At the time they had been close to discovering the Monywa site, one of the world’s top ten copper deposits. The Monywa copper mine property consists of three mountain ranges: the Sabetaung, which includes Sabetaung North and South, Kyisintaung and Letpadaung deposits and their surrounding areas. The site conceals a site with copper concentrations great enough to make it one of the last sites where open pit mining is still profitable. Copper being an essential element to the industrial world, the Monywa Copper mine project is certainly a significant project. Situated in Myanmar’s northern Sagaing Division, the mountains, which lie within Salingyi Township, are located 15 miles from Monywa City. Their shadow reaches over the Chindwin River, one of the country’s main freshwater sources, and so too might the pollution created by the mining of their copper. Investment, specifically joint foreign investment, in Monywa copper extraction has a long history. Between 1985 and 1997 an earlier mining project, developed by Mining Enterprise No. 1, a State-owned company, and RTB Bor Copper Institute, a Yugoslavian state-run company, extracted copper using floatation-concentration processes.14 However, due to financial concerns, and augmented by the instability of its domestic situation, RTB Bor pulled out of the site. At the beginning of 1992, Ivanhoe Myanmar Holdings, Ltd., a subsidiary of the Canadian Ivanhoe15 company started talks with Myanmar’s government owned Mining Enterprise No. 1, to develop facilities for the recovery of copper from the Monywa mountain deposits using a heap-leach solvent extraction– electrowinning (SX-EW) process.16 SX-EW is a process that, in theory, has less negative environmental impacts than the previous concentration-floatation technique as it requires fewer processes and can be conducted in situ (more on this discussed further in relation to the environmental impacts of the project, as high pyrite contents in the ore have led to the need for higher acidity of solvents used which present their own issues). The feasibility study was conducted in 1994 for

13 N.M. Penzerr, The Mineral Resources of Burma (London: George Routledge and Sons, 1922). 14 Ivanhoe Mines Ltd, Monywa Copper mines Fact Files, available at: , accessed 22 March 2013. 15 Ivanhoe has since been renamed Turquoise Hill Resources. 16 Ivanhoe Mines Ltd, supra note 15.


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the “Sabetaung, Sabetaung South, Kyisintaung and Letpadaung”17 mountains near Monywa City. The joint venture with a 50/50 interest between Mining Enterprise No. 1 and Bagan Copper Holdings Ltd. (Ivanhoe Myanmar Holdings, Ltd Burmese subsidiary) created the Myanmar Ivanhoe Copper Company Limited (MICCL) in April 1996.18 The venture was to begin work immediately on three open pit mining operations, with a 20-year lease per site, on the Sabetaung, Sabetaung South, Kyisintaung deposits, with future plans to include the Letpadaung area 7 km away. The project was designed to produce 25,000 tpy of cathode copper by heap-leach solvent extraction electrowinning technology, but was boosted to 39,000 tpy by 2004.19 From its inception it was the intent of the MICCL, to expand to the Letpadaung deposits as part of its “phase 2.” This phase was projected to increase the annual sum of production to around 200,000 tonnes,20 with estimates in 2007 suggesting that output could be sustained for 30 years.21 Another key draw of the Monywa copper mine, according to Ivanhoe, is the “low-cost” of the copper production, made more appealing by the high quality of the ore. Additionally, it was estimated by Ivanhoe Mines, in 2007, that “approximately 6,500 children, women and men in the Monywa region currently depend on the operation of the Monywa Copper Project for their food, shelter, income and jobs” and this is prior to the Letpadaung expansion, which was set to produce over 1,000 additional jobs.22 However, issues concerning the payment of dividends and the financial insecurity of the project led Ivanhoe Mines to a slow withdrawal from the project.23 Since 2004 Ivanhoe mines had been looking to minimize its share of the Monywa Copper Mine project. Media broadcasted in April 2006 that: “a 17 Ibid. 18 Ibid. 19 Ivanhoe Mines Ltd, Annual Information Form for the Year Ended December 31, 2007, March 28, 2008, available at: and Ivanhoe Mines Ltd, supra note 15. 20 Comprised of approximately 50,000 to 80,000 tonnes from the Sabetaung and Kyisintaung (S&K) deposits and 125,000 to 150,000 tonnes from the Phase 2 development of the Letpadaung deposit. 21 Ivanhoe Mines Ltd, supra note 15. 22 The types of jobs are a key question when examining the import of these figures. “Monywa Copper mines Fact File”, Ivanhoe Mines Ltd, supra note 15. 23 Ivanhoe Press Release: “Ivanhoe Mines has not recovered the more than $100 million it has invested in the development and operation of the Monywa Copper Project and has not made a profit on the investment. MICCL, the Myanmar joint venture company that owns and operates the Monywa Copper Project, has not made regular dividend payments to its joint-venture shareholders during the almost nine years of mine operations.”


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consortium of South Korean companies was planning to buy half of Ivanhoe’s 50% stake in MICCL … [which] would reduce Ivanhoe’s interest in the Monywa project to 25%”.24 This did not come to fruition, and on 18 October 2006 Ivanhoe Mines announced that they were moving to divest themselves entirely of all Myanmar assets.25 In order to do this, in February 2007, Ivanhoe created the Monywa Trust, “an independant third party trust … [which] transferred ownership of the Myanmar Assets to the trust”. “Trust Holdco,” a company created for the purpose of holding and selling these Assets, then issued a promissory note to Ivanhoe entitling them to the proceeds of the sale of the Monywa Copper Project. Production continued in the interim phases (2007–2011), but was halted in late 2008 until mid2009, when the financial crisis caused copper prices to downturn.26 On 24 June 2010, The Irrawaddy reported that “China North Industries Corporation (CNIC) announced [on its website] that it signed [on June 10th] the Monywa Copper Mine Project Cooperation Contract with Burmese military officials during the Chinese Prime Minister Wen Jiabao’s visit in early June”.27 But it was not until April 5th of the following year, 2011, that National news, The New Light of Myanmar, released a statement that the deal had been finalized: Brig-Gen Zarni Win of the Union of Myanmar Economic Holdings Ltd and Executive Deputy General Manager Mr Yin Jiaxu of NORINCO (G) on Production Sharing Contract for Sabetaung, Sabetaung South and Kyisintaung Copper Mines.28

4 Myanmar’s land tenure regime As part of the contextualization of this discourse analysis, it is instructive to outline the recent changes to Myanmar’s Land Laws. Under the 2008 Constitution of the Union of Myanmar, the Union “is the ultimate owner of all lands and all natural resources above and below the ground, above and beneath the water and in the atmosphere” (Art 37 (a)). With around 70% of the 24 Ivanhoe Mines Ltd, supra note 15. 25 Ibid. 26 Kean Thomas, “Monywa Copper Mine Restarts Production,” The Myanmar Times, June 2009 (24/473). 27 Kuang Ba, “Chinese Weapons Maker to Mine Monywa Copper”, Irrawaddy, 24 June 2010, available at: , accessed 22 March 2013. 28 New Light of Myanmar, 5 April 2011, available at: , accessed 22 March 2013.


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population living in rural areas,29 and 30–40%30 of those employed working the land of others, land, and especially farmland rights are a contentious and complex issue which are often embroiled in ethnic politics.31 On 30 March 2012, the government brought into force two new land laws, and on 31 August 2012, their respective rules32: The Farmland Law; The Farmland Rules, The Vacant, Fallow and Virgin Lands Management Law; and The Vacant, Fallow and Virgin Lands Management Rules. The Farmland Law (and Rules) replaced these earlier laws: 1953 Land Nationalization Act; 1963 The Disposal of Tenancies Law; (The Farm Land Law 2012, Art 43 (a, b, c)); 1963 The Agriculturist’s Rights Protection Law 1954 Nationalization of Farm land and Rules; 1963 The Land Rent Rules; (The Farm Land Law Rules 2012, Art 117)

The list of the repealed laws here demonstrates the importance of the new law. Along with The Vacant, Fallow and Virgin Lands Management Law (VFV Law), it is the base of the nation’s land laws. Private property is allowed under the constitution (Art 37 (c)), yet the majority of the population have only “use rights” and not “control rights,” i.e. they cannot decide freely what to grow and when on the land attributed to them.33 A positive element of the new Land Law is the encoding of a farmers “transfer rights,”34 which allows for the leasing and sale of the land that they are registered on. While the law is progressive in some aspects, e.g. in outlying the institutions responsible at different levels for organizing, registering and managing rights to land, it also makes a farmer’s right to work land potentially more tenuous than before. The Farmland Law creates too many conditions where the “revoking” of farmland use rights, or “reclamation,” of the land by the government is legal (The Farm Land Law, Art 7). The burden of proof concerning the pre-existence of right to use the land and to its “proper” 29 CIA (2013), supra note 3. 30 Koichi Fujita et al., The Economic Transition in Myanmar After 1988, Market Economy versus State Control (Singapore: NUS Press and Kyoto University Press, 2009), p. 9. 31 Customary law dominates the governance of land in the Ethnic minority States that are more autonomous, e.g. Shan State 32 The “Rules” for each Law detail the application of the March 30 Laws and were drafted by the Ministry of Agriculture and Irrigation, signed by Myint Hlaing the Union Minister of the Ministry. The Farmland Law and the VFV Law were passed by the Parliament, the Pyidaunsu Hluttaw, and signed by President Thein Sein. 33 Farmers must submit a request to the local Land and Settlement Authority in order to change their cropping. 34 FAO, What Is Land Tenure, available at: , accessed 28 April 2013.


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use under the initial agreement made, falls upon the farmer. If the local official is not fully satisfied with their proof the right to use the land may be taken and a fine levied. This is the case for all “new” farmland granted under the VFV Law and for all farmland currently in use (as re-registration is necessary). The time period of use is also limited to the lifespan of the crops/project to be developed on the land and continued use of the land is conditional on being able to maintain the work on it (The Farm Land Law, Art 9(d)). If they are unable to work it after the previous project/cultivation period is finished,35 or if they wish to change crop – which requires permission, they risk having their land deemed “vacant” and seized (The Farm Land Law, Art 8). Additionally, the government may choose to confiscate any land that it deems necessary for the sake of a project that will be “in the interest of the State or in the interest of the public,” and “repossess” it.36 Herein lies the land grab concern.

5 Land grabbing by the expansion of the monywa copper mine: mechanism, compensation and environmental impact 5.1 Mechanism of the land grab During the week of 7 March 2013, an investigation committee, the parliamentary Farmland Investigation Commission, completed and submitted to the parliament their report on land confiscations throughout the country. An LFB news source, the Burma Partnership, reported that the Commission found that 250,000 acres (101,171 hectares) of village land had been grabbed by the military under the previous regime37 (cf. Figure 3). In their report, the commission wrote that they had conferred with leaders among the military concerning the seizures and that “Vice Senior-General Min Aung Hlaing […] confirmed … that the army will return 35 As outlined by their agreement with the local Land and Settlement Authority. It should also be noted that any new land tenure rights given under the VFV Law are based on ability to use land and that in this case land tenure is based on promise-to-work system. 36 Article 26 The Farm Land Law. This article also calls for “compensation without any loss,” but is very vague as to what that means in application. 37 Burma Partnership, Rampant Land Confiscation Requires Further Attention and Action from Parliamentary Committee, 12 March 2013, available at: , accessed 22 March 2013.


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Figure 3: Large villages surrounding the Letpadaung Mountain Source: Google Earth 30 December 2012.

seized farmlands that are away from its bases, and they are also thinking about providing farmers with compensation” [authors’ emphasis]. However, the report makes no mention of the Letpadaung copper mine issue as the confiscations were not conducted directly by the military, but by the joint company consisting of Wanbao Ltd and Union of Myanmar Economic Holdings Ltd (UMEH), a predominantly military owned company.38 Under the 1994 Myanmar Mines Law, currently under revision, a committee is to be set up for each “Mineral Reserve Area,” that is responsible for investigating the effect of the project on the public in terms of their rights and to ensure they receive “reasonable rights and benefits” at the demarcation stage of the project [Myanmar Mines Law 1994, Ch 7, Art 21(c)]. This establishment of an equitable situation from the outset is the responsibility of the Ministry of Mines, and therefore of the government. This said, for the sake of the Monywa copper mine expansion project, approximately 7,800–8,000 acres (3,157–3,237 hectares) of land from 26 villages around the Letpadaung Mountain, the site of the new mine, was confiscated by the project, and done in a manner that was evidently inequitable (as confirmed by the Investigation Committee). The land grabbed by the project belongs39 to the people of Salingyi’s Hse Te, Zee Daw, Wet Hmay and Kan Taw villages.40

38 Ibid. 39 Community/village land and private farmlands. 40 Nyein Nyein, “Copper Mine Land Grabs Protest Heats Up”, The Irrawaddy, 23 August 2012, available at: accessed 22 March 2013.


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Early in 2012, villagers were ordered to leave the area and move to relocation sites. By 26 November 2012, 218 out of the intended 442 households had been relocated to another prepared village.41

5.2 Compensation: non-existent or too little – too late

Percentage of Articles Reporting Themes

The issue of compensation was, and continues to be, at the heart of the Letpadaung land grab case. Little or no compensation was given to the farmers and members of the 26 villages affected by the project. Reporting on this theme remained low throughout, however (Figure 4). Buoyed by the new protest law, and the hope that regime change brought, the effected peoples decided to voice their complaints, directing most of them against the Mining Company itself. The reality of the legal situation is not as it has been presented, or understood, by the media however. When the previous government signed the deal with Wanbao and UMEHL for the Monywa copper mines, they had not apparently outlined the extent of the land to be issued to the joint venture company for “phase 2”: the Letpadaung mine. It was not until September 2012 that UMHEL was given a 60-year grant to work on the land, although work had already started on the mountain itself and dumping was already occurring on its surrounding lands. At this point, the government had decided on a land use change that overlapped with the farmlands of the 26 villages. This meant that the lands were being “repossessed” in favour of a project “beneficial to the State and public.” It was the responsibility of the State at that point to inform the villagers of the change and to compensate them for the loss accordingly. When the new regime came to power, they inherited, according to international law,

100%

Land Grab

80%

Compensation

60%

Environment

40% Crackdown/Raid

20%

Injured Monks

0% Before Sep-12 Oct-12 Before From 29 Dec-12 Jan-13 Feb-13 Mar-13 Sept 29 Nov Nov 2012

Linear (Land Grab) Linear (Environment)

Figure 4: Land grab and environment reporting trend lines (all articles)

41 Jincui Yu, “Wooing Old Customers Anew”, Global Times, 27 November 2012, available at: , accessed 22 March 2013.


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the responsibility for the agreements made by the previous regime. Thus they are now the responsible “land lord” of the leased/confiscated land. Under The Farmland Law stipulates [chapter 4, art. 26, 27] that compensation must be given for farmland taken in these cases, such that there is no “loss”. Thus, the State owes reparations to those whose land was taken. The rules are different for the land affected by the project beyond the agreed area outlined in the Monywa Copper Mine Company/Government contract. Under the Myanmar Mines Law of 1994, a project that wishes to expand beyond the Mineral Reserve Area, must negotiate, and have agreements, with those who have the “right of possession, right of use and occupancy, beneficial enjoyment, right of succession or transfer of the said land,”42 [Myanmar Mines Law 1994, Ch 4, Art 14]. In this area, the villagers are still the holders of the land rights. The individual farmland rights holders are permitted by law to lease and sell their land rights, except to foreign companies or individuals.43 So if the company, as the mining permit holder, wants to lease the use of their lands to build a temporary through road, they would be expected to form an agreement with the locals in each case. Inversely, this means that all lands that the company was required to negotiate for were located outside of the original project zone, the rights to which were privately owned. However, the terms for accepting the compensation that was offered in these deals were non-transparent. In early 2011, the Irrawaddy reported that some villagers were paid 52,000 kyat (US $60) per acre of farmland as compensation for what they believed were 3 years worth the loss of their crops44 due to the construction process of the site, i.e. the need for more through roads and the setting-up of power lines, etc. However, it had apparently not been made clear that this compensation was intended by the Monywa copper mine company as payment for the “sale” of the land rights of the farmers, who presumed that they could have the land back to use after 3 years. In February 2013, after research into this issue, Aung Thein a member of the Myanmar Lawyers Network Myanmar claimed that officials used illegal tactics to get the villagers to sign these contracts. He discovered that “coercion and fraud” were used “to force villagers to sign contracts” and thus “under

42 This set-up of a direct company-to-villager negotiation without stipulations on mediation to ensure a “fair” agreement, or a standard for what would be considered as equitable in this case, leaves too much open to abuse. Agreements then reflect the unequal power relations between the two parties. 43 Unless permitted by the new investment law’s provisions. 44 See supra note 44.


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Burmese law these contracts are invalid and can be rescinded by the villagers”.45 Further, whatever agreements that the villagers do sign, if willingly, should only be for the term of a 60-year lease, i.e. until the end of the project, because according to the law the land is to be returned to its previous tenant once the “state project” has been completed.46 According to several LNG news sources, the Implementation Committee charged with the follow-up of the Letpadaung Investigation Committee report47 which was released in March 2013, with government support pledged that nearly five billion kyats in compensation would be paid for these land grabs.48 Compensation is to be paid for 6,784 acres (2,745 hectares) in total.49 The Irrawaddy, the source with the most consistent reporting of this case of land grabbing, wrote that a total of around 224 million kyat ($259,000)50 has been given out by the government to 69 farmers presumably for the reparations owed to those whose land rights were officially signed over to the project.51 Determining which of the lands confiscated falls under either of these two scenarios, the State-confiscated and liable land, or the company-confiscated and liable land, however, is up to the government and the report implementation committee. There are also concerns the loss of the lands to be confiscated could undermine the livelihood security of the farmers, and thus that restitution need also include arable land near the new villages, given or made available for purchase. At a meeting with the residents of Sete village, Thaung Sein, Saigaing Region’s Parliamentarian said that villagers located in Tonywa, Sete, and Wethmey will receive new land.52 However, some declined and agreed in favour of returning

45 Roughneen Simon, “Fraud, Excessive Force Used at Letpadaung Mine: Report”, The Irrawaddy, 14 February 2013, available at: , accessed 22 March 2013. 46 Chapter 6, art. 32: “If projects are terminated, farms are to be given back to original legitimate farm owners (person/organization) who has the right for farming.” 47 To be discussed in detail further on. 48 Eleven, “Farmers Receive Compensation for Land Grabbed for Copper Mine”, 18 March 2013, available at: , accessed 22 March 2013. 49 According to Myint Aung of the military owned Union of Myanmar Economic Holdings Limited. 50 At the time of writing, i.e. up until March 22. 51 Thet Swe Aye, “Villagers Accept Compensation, But Some Still Refuse”, The Irrawaddy, 19 March 2013, available at: , accessed 22 March 2013. 52 According to the Democratic Voice of Myanmar, one of the few news sources that were present at this meeting: Aye Ni, Protestors close rally sites near Latpadaung mine, Democratic Voice of Burma DVB, 18 March 2013, available at: , accessed 22 March 2013.


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to farm their old lands in April, after the previously agreed upon 3-year contract for compensation had expired.53 This will not be possible for many, due to the previously mentioned reality of the legal situation that the villagers find themselves a victim of. Some farmers from the closest villages began accepting compensation in April 2013, as their fields were already polluted by waste dumped from the copper mine project, making farming the land impossible. According to the Kyemon, another State-owned newspaper, “69 landowners accepted payments ranging from 700,000 to 1.5 million kyat (US$810–1,735) per acre, depending of the quality of their farmland”.54 This was considered an improvement on the slightly over 500,000 kyat ($580) offered by the company in 2011.55 However, some still felt that this rate was too low. San Nu Wai, from Sel Tel village, reported that a deal struck recently between neighbours for the sale of the right to 0.6 acres of land was concluded at 8 million kyat ($9,250), which equates to more than nine times the highest compensation offered by the government to date.56 Not surprisingly, those that have been among the first to accept compensation were those who had already moved to the relocation sites.

5.3 Environmental impact concerns 5.3.1 New national environmental laws On 30 March 2012, the new government enacted The Environmental Conservation Law,57 legislation that has taken a decade to produce, but was immediately called for under the 2008 Constitution.58 The law was created to implement The National Environmental Policy of Myanmar from 5 December 1994,59 which

53 Ibid. 54 Around 1.5 million kyats for one acre of irrigated farmland, 1.2 million kyats for one acre of cultivated monsoon hillside and one million kyats per acre of land not used for cultivation. 55 Thet Swe Aye (2013), supra note 54. 56 Ibid. 57 Government of the Republic of the Union of Myanmar, The Environmental Conservation Law, 30 March 2012. 58 Article 45 of the 2008 Constitution reads “The Union shall protect and conserve [the] natural environment,” and further, Article 390 “Every citizen had the duty to assist the Union in... environmental conservation.” 59 Tee Tee Cho, Environmental Law of Myanmar, Singapore Journal of International and Comparative Law, no. 1 (1997), 609–614, available at: , accessed 10 July 2013.


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aimed to find a balance between the people and their cultural heritage, the countries’ natural resources and the environment. The new Law also follows after the release of the 2009 “National Sustainable Development Strategy for Myanmar”60 that was a joint effort between the National Commission for Environmental Affairs and Minister for Forestry (NCEA)61 and UN organizations and followed the same principle of the need to establish a balance between the different elements that make-up the country. Essentially The Environmental Conservation Law attempts to change an environmental system that was previously sectoral even with the NCEA, by extending the role of the Ministry of Forestry as the new Ministry of Environmental Conservation and Forestry (MOECAF), and creating a new Environmental Conservation Committee that oversees all environmental activities in the country.62 The law encodes basic principles such as intergenerational equity, sustainable development and the polluter pays principles but does not go very far in elaborating what these elements entail in practice or how they will be enforced. The Environmental Conservation Committee is tasked with educating their citizens and cooperating with foreign governments and organizations for access to funding and technologies that could aid in their conservation efforts and are expected to monitor the activities of various sectors of the government in their implementation of the law. The MOECAF is involved in the writing of quality standards and the expansion of the principles of the law, its application, enforcement, the arbitration of disputes, and the identification of those who violate the law. This law is still in its infancy and the efficacy of the MOECAF and the Environmental Conservation Committee not yet apparent. However, there are still concerns among critics about the monitoring of the activities of these two agencies and the possible misuse of Art. 36 which allows the MOECAF, with Government approval, to “exempt of relieve any Government department, organization or private business from complying with the provisions contained in this Law for the interest of the Union and its people”.63 This article may be interpreted as excusing potentially environmentally unfriendly 60 Ministry of Forestry, National Sustainable Development Policy For Myanmar (2009), available at: http://www.rrcap.ait.asia/nsds/uploadedfiles/file/Publication%201-NSDS%20Myanmar.pdf.>, accessed on 10 July 2013. 61 Established in February 1990 under SLORC to create a central environmental monitoring body in the face of economic and industrial development, and were responsible for the drafting of Myanmar’s Agenda 21. UNESCAP, Integrating Environmental Considerations into Economic Policy Making Processes in Myanmar, ESCAP Virtual Library, available at: , accessed March 2013. 62 Government of the Republic of the Union of Myanmar (2012), supra note 61, Art 4. 63 Ibid, Art 36.


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activities conducted by large investments, such as the Monywa Copper Mine, that are seen as in the “interest” of the country.

5.3.2 Environmental concerns continue At the start of serious protest in July 2012, there was no official data available to the public concerning the environmental impact of the expansion project. Yet almost all news groups talked of environmental concerns as one of the main reasons for protest. Thomas Fuller, in The New York Times, went as far as to state that environmental concerns are “[a]t the heart of the case” and that “land seizures” are the broader issue.64 While data were not available, the history of the area and their experience with other mines on their mountains has made the local people wary. An increase in local air pollution was evident at the time, and dumping on the lands next to farmland was creating pollution scares among the villagers. Whether a “real” imminent threat or not, the environmental concern platform has been successful in gaining attention and support to the protesters of the mine and its subsequent land grabs. The suspected widespread environmental damage that the project is creating, or expected to create, has been almost as consistently reported an issue as the abstract “land grab” (Figure 4). It was reported by all media sources for the entire period of time investigated, with both giving way to the crackdown issue after 29 November. Environmental concerns were the issue that drew further support in August 2012, from villages further afield. When those living under the Letpadaung Mountain reminded others of “the decimation of nearby [Sabetaung South, Kyisintaung] mountains due to similar projects in the past,”65 the literature surrounding the issue containing elements of nostalgia. Suddenly, the concern was in protecting the natural and physical heritage of the land that they knew. LNG sources reported locals’ concerns over the loss of their mountains. The Irrawaddy reported on their altruistic desire to preserve their landscape for future generations, most vividly expressed in “mountain gazing” sessions66 and of the respect for the monolith that had protected their lands. 64 Fuller Thomas, “In Battling Mine Project in Myanmar, 2 ‘Iron Ladies’ Rise”, The New York Times, 26 September 2012, available at: , accessed 22 March 2013. 65 Zarni Mann, “Letpadaung Mine Protesters Scale New Heights”, The Irrawaddy, 26 October 2012, available at: , 22 March 2013. 66 Nyein Nyein, “Copper Mine Protest Earns Nationwide Support”, The Irrawaddy, 13 September 2012, available at: , accessed 22 March 2013.


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It was this environmental heritage agenda that pushed demands for the complete closure of the project. At the start of the protests, the focus had been on insufficient compensation and/or the grabbing of their land rights through non-transparent agreements. But by the end of August and beginning of September, protesters were calling for the end of the whole mining project rather than just the expansion of the existing activities. “What began as a few dozen farmers in Sagaing Region demonstrating over land grabs and inadequate compensation has quickly escalated into a mass uprising against extractive industries which decimate the environment featuring students and activists from Rangoon and Mandalay,” reported the Irrawaddy, succinctly, in midSeptember 2012. Beside the damage done to the landscape, i.e. to Letpadaung Mountain itself, there are serious concerns over water quality. Han Win Aung, of the Political Prisoners Families Network, a Burmese NGO, reportedly said “some wells in the area are no longer drinkable or usable as the water has a sour and salty flavour [sic]”.67 Locals situated near the main project site have reported their need to buy bottled water, those who cannot afford it, have no choice but to drink the contaminated water.68 The pollution was blamed on the current Monywa Copper Mine Company’s activity, although there were no public reports. Figures 5 and 6 show the extent of the excavation and subsequent environmental damage done to the side of the Letpadaung Mountain. The villages marked in the images are among the first to be relocated for the sake of the expansion: Kyawkyawa, Kan Taw,69 Wethme.70 While some water pollution can be attributed to the small scale “subsistence mining” [Mines Law, Art. 2 (m)], carried out by locals in the tailings ponds of previous projects, there is strong evidence that this expansion site poses a serious further threat to the local water table. This is due to the mining methods to be used as the project is currently going through the development phase and is not at the extraction/beneficiation/refining phase yet. The Letpadaung mine is to use the same method as the other three Monywa sites: heap-leach solvent extraction-electrowinning processing. This type of processing combines multiple metallurgical processes, requiring fewer steps, and saving energy and reducing emissions. For example, this system reduces the use of smelters

67 Kuang Ba, “Chinese Weapons Maker to Mine Monywa Copper”, Irrawaddy, 24 June 2010, available at: , accessed 22 March 2013. 68 Ibid. 69 This village has been entirely relocated. 70 Wet Hmay/Wat Hmae/Wat Hmay/Wethme – alternative spellings.


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Figure 5: 11 May 2012

Figure 6: 30 December 2012 Source: Google Earth 30 December 2012.

and subsequent sulphur dioxide emissions. However, the heap-leach process requires a large amount of solvents of very low pH. A 2007 article by an Australian research group investigating the other Monywa sites, said that they were “extremely acidic, with a solution pH of usually less than 1.5 and


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in some cases less than 1.0”.71 In another article by the same group, from 2008, they explained that “most heap bioleaching operations treating lowgrade ore operate with a solution pH between 1.5 and 2.5”. However, the Letpadaung site has very high-grade ore, but a high amount of certain spoil72 metals like pyrite mean that such low pH solvents may be necessary. But this will only increase the concerns of locals and their convictions that their water table is threatened. The MICCL used to have bi-annual visits from Societé Générale de Surveillance SA (SGS SA), the reports from which were made public, but has since changed to the Singaporean SGS group from inspections conducted every 3 months.73 According to U Myint Aung, a project official, the Monywa sites have the international standards of ISO 14001,74 ISO 900175 and OHSAS76 18001 since 2003.77 Even so, many blame the current situation on a lack of a thorough Environmental Impact Assessment (EIA) and Social Impact Assessment (SIA). However, national legislation concerning EIAs and SIAs is forthcoming as a provision78 of The Environmental Conservation Law.79 The mining project also sits along tributaries to the Chindwin River, and less than 5 km from the river itself, one of the country’s main rivers, that runs into the Irrawaddy River. Thus the far reach of these water and air pollution issues and the concern for the preservation of the landscape in general drew the support from near and abroad. The environmental narrative regionalized the issue in the same way that the land grab and the crackdown narrative nationalized it.

71 Thomas Maung Shwe, “Ivanhoe Mines Receives $103 Million from Monywa Mine Sale”, Mizzima, 5 August 2011, available at: , accessed 22 March 2013. 72 The mining term for the waste matter removed from the dug-out materials. 73 See supra 45. 74 An environmental protection guideline, not a certificate that was updated in 2004 to a more inclusive version, while ISO 14063 is also recommended as it outlines the need to communicate with local people about the environmental impact of a project. 75 Quality control certification. 76 Operational health and safety standard. 77 Xinhua, “Myanmar’s Monywa Copper Project Comply with National Law: Officials”, China Securities Journal, 16 October 2012, available at: , accessed 22 March 2013. 78 Government of the Republic of the Union of Myanmar (2012), supra note 61, Art 7(m). 79 Find an initial draft at: .


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6 Forms of resistance and counter-resistance under a new legal regime 6.1 The old and the “new old” of civil rights: peaceful assembly and procession80 Under the former rule of the Tatmadaw,81 there was little space for peaceful assembly and/or procession. The State Law and Order Restoration Council (SLORC),82 suspended the constitution of 1974,83 and from 2 October 1992 had been contriving to produce another document, The National Convention, by creating a National Convention Convening Commission. The process of drafting a new constitution was highly contentious, with SLORC (and latter SPDC) having complete control of the proceedings. Exiled groups, like the National Council of the Union of Burma (NCUB),84 and opposition parties such as the National League for Democracy (NLD) made clear their intentions to unilaterally draft their own version of the country’s future constitution when it was evident that they were not to be included in the National Convention Convening Commission.85 These announcements and continued protests from the populace in the face of the creation of a constitution that was non-inclusive prompted the release of SLORC order 5/96, The Law

80 Note: Myanmar is not a party to either of The International Covenant on Civil and Political Rights, or The International Covenant on Economic, Social and Cultural Rights. UN Treaty Collection, Status of The International Covenant on Civil and Political Rights, available at , accessed 9 July 2013; and UN Treaty Collection, Status of The International Covenant on Social, Economic and Cultural Rights, available at , accessed 9 July 2013. 81 The official name for the military forces. 82 The name of the military regime from 1988 to 1997, to be re-named the State Peace and Development Council from then until the regime change of 2011. 83 The Constitution of the Socialist Republic of the Union of Burma was suspended 19 September 1988, by SLORC order (Act) 1/88. It contained several articles that outlined the right of citizens to free speech, assembly and procession: Art 153, 156–158, 166–167. from: Government of the Republic of the Union of Burma, The Constitution of the Socialist Republic of the Union of Burma (1974), 3 January 1974. 84 In exile in Thailand since 1989. 85 Maung Khin Win, Rival Constitution Writing Processes: A Problem in National Reconciliation in Burma, 7 Legal Issues on Burma Journal (December 2000), available at: , accessed 20 June 2013.


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Protecting the Peaceful and Systematic Transfer of State Responsibility and the Successful Performance of the Function of the National Convention against Disturbances and Oppositions of 7 June 1996.86 This Act, also known as the anti-subversion law, was one of the main instruments used to curb peaceful assembly and protest in the country. It was written to forestall all activities which SLORC perceived as undermining the workings of the national convention and disrupting their rule through “incitement, delivering speeches, making oral and written statements” that could be interpreted as acts of “obstruction, disturbance and [in] opposition to the development of the democratic and peaceful transfer of power in the state”.87 Thus any form of public protest against the workings of the regime could be considered contra legem and punishable. Indeed, the punishment for a breach in this law may have meant a minimum of 5 years imprisonment to up to 20 years with a fine88 and penalties extending to those who aided and/or abetted. In 2008, a new Constitution was accepted after a controversial referendum.89 It outlines the new structure of the country that has existed during the reform period of 2011–2013. In terms of the right to protest and freely express reservations, article 354 (a) and (b) states that every citizen will have the right: “(a) to express and publish freely their convictions and opinions; (b) to assemble peacefully without arms and holding procession”.90 However these civil rights are limited by the rights of others and that of state security, unity, peace and tranquillity.91 These restrictions and the open nature of their wording have lead to concerns among human rights groups. However, the elements that the constitution names/aims to protect from the “harmful” influence of an unchecked exercising of the freedom of assembly and procession are consistent with those named by previous constitutions of the Union (see box below).

86 The State Law and Order Restoration Council, The Law Protecting the Peaceful and Systematic Transfer of State Responsibility and the Successful Performance of the Function of the National Convention against Disturbances and Oppositions, 7 June 1996, available at: , accessed 10 June 2013. 87 The State Law and Order Restoration Council (1996), supra note 90, Art 3(a). 88 Ibid. Art 4. 89 Government of the Republic of the Union of Myanmar. Constitution of the Republic of the Union of Myanmar (2008). 29 May 2008. Version 2010. 90 Ibid. Art 354(a), (b). 91 Ibid.


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Elements that should not be undermined by exercising the rights to freedom of expression, assembly and procession, according to the three constitutions92: 2008: Order, law, morality, peace, tranquillity, security, solidarity93 1974: Order, law, morality, peace, tranquillity, security, solidarity (Socialism)94 1947: Order, law, morality (Constitution)95

Interestingly, the wording of the restrictions of these freedoms is similar to that of other more “developed” Southeast Asian countries, like Singapore. Article 14 of the Singapore’s Constitution places similar constraints on the right to free expression and protest.96 Singapore goes even further as to say that the activities of their citizens may also be restricted in that they may harm foreign relations [Art 14 (2a)]. Thus in as much as the Constitution of Myanmar codifies a citizen’s right to freedom of expression, assembly and procession, what is more significant, perhaps, to each individual, is what laws the State passes to determine “how” they “should” exercise their rights, rather than what general ideas they must not seek to undermine through their activities. A new public protest law, “The Right to Peaceful Assembly and Peaceful Procession”97 was released in Myanmar on 2 December 2011 and has opened doors, again recognizing the “in-principle” right of citizens to “legal” protest. Previously, as Kevin Woods of the Transnational Institute remarks, “it was never possible … for villagers to speak out … or else they would disappear. And suddenly now it’s possible – not of course without intimidation from authority figures, but people are not disappearing from raising these issues and it’s having a kind of domino effect in terms of other villagers”.98 However, the law places

92 In actuality there were two Constitutions in force prior to independence, however the 1947, 1974 and 2008 Constitutions are the three written while to the union had the power of selfdetermination. 93 Supra note 83. 94 Government of the Republic of the Union of Burma, The Constitution of the Socialist Republic of the Union of Burma (1974), 3 January 1974. 95 Constituent Assembly of Burma, Foreign Office, The Constitution of the Union of Burma (1947), 24 September 1947. 96 Government of Singapore, Constitution of the Republic of Singapore (1965). 97 Government of the Republic of the Union of Myanmar, Pyidangsu Hluttaw, The Right to Peaceful Assembly and Peaceful Procession Act, 2 December 2011. 98 Mizzima, “Land Confiscation Issue Major Concern for Burma’s Rights Groups”, Mizzima News, 23 October 2012, available at: , accessed 22 March 2013.


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considerable restrictions on citizens in relation to the exercising of their right to peaceful assembly and protest, by defining what is, and is not, considered as a lawful protest or assembly. The definition of what is a “legal” action is of concern to human rights watch groups who see it as an infringement of Myanmar’s citizens’ constitutionally recognized rights.99 This law is a form of reformed control over these rights that delineates the extent to which a citizen may exercise their rights. According to the new Public Protest Law, and its ByLaws, “Regulations relating to the Tight to Peaceful Assembly and Peaceful Procession”,100 (5 July 2012), all citizens wishing to peacefully protest, assemble, or both, must submit an application to do so 5 days in advance to the Commander of the Township Police Force.101 Those who are leading the protest, as well as any speakers, must include their personal details and a biography, in the application forms102 along with a description of what they are to speak on, what chants and slogans will contain,103 and they must not deviate from the versions of these that are permitted. There is significant room for intimidation and blacklisting of protest organizers and leaders considering also that Art 27 of the By-Laws also stipulate they must take responsibility for all attendees of the sanctioned peaceful protest and/or assembly. Further causes for concern are the punitive actions outlined by the new laws with regard to those who fail to comply. If a sanctioned action violates the laws individuals may receive a maximum of 6 months in prison and/or a large fine.104 However, in a move to protect the right of citizens to protest without interference, there is also a maximum of 2-year prison charge for anyone who disrupts a “permitted/legal” peaceful protest.105 But the most contentious article of the Protest Law is Art 18 that writes that any individual who conducts an “unlawful/unsanctioned” protest and/or assembly may serve a maximum of

99 It should be noted that under the 2008 Constitution the people’s right to peaceful protest is enshrined: “to assemble peacefully without arms and holding procession” from: Government of the Republic of the Union of Myanmar (2008), supra note 93, Art. 354(b). 100 Government of the Republic of the Union of Myanmar, Ministry of Home Affairs, Regulations relating to the Right to Peaceful Assembly and Peaceful Procession. 5 July 2012. [Unofficial translation]. 101 Government of the Republic of the Union of Myanmar, The Right to Peaceful Assembly and Peaceful Procession Act, 2 December 2011. Art 4; and Government of the Republic of the Union of Myanmar, Ministry of Home Affairs (2012), supra note 104, Art 3. 102 Government of the Republic of the Union of Myanmar, The Right to Peaceful Assembly and Peaceful Procession, 2 December 2011. Art 4(c). 103 Ibid, Art 4(a). 104 Ibid, Art 19. 105 Ibid, Art 17.


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1 year in prison and/or a heavy fine.106 This article can potentially be viewed as unconstitutional in so much as it punishes citizens for exercising their rights without seeking further permission. However, the constitution itself stipulates that the government has the power to further “refine” these rights. The Protest Law itself contains provisions in its last articles that allow the Ministry of Home Affairs to issue regulations, “necessary announcements, orders, instruments and procedures,” (when approved by the Union Government), when “implementing” the Laws.107 Additionally, under the new law authorities are obliged to accept the applications to protest unless they feel that doing so would pose a “serious” threat to the security, harmony, or peace and Public morality of the State (a clause that is wide open to interpretation).108 If this article is upheld then the law may as yet function alongside the constitution. However, the Asian Branch of Human Rights Watch reports that villagers around the Letpadaung area claimed to have “submitted an application 11 times [to the local authorities] but it was never approved”.109 This is a new Act and its application is only now beginning to be tested. With applications being reportedly refused and the government unused to handling peaceful protests positively, this law is still in its infancy.

6.2 Mobilization of the public in the face of land grabs One of the major issues raised by the protests and demonstrations that have been occurring all around the country since last year is the increase in land grabs. The Monywa Copper Mine case is just one example of this. Grassroots protest organizations have conducted sit-ins, demonstrations, marches, conferences and even filed lawsuits against companies, and even President Thein Sein personally.110 Information sharing among locals as well as among similarly stressed communities has been a key element in the new wave of protest. Protests began in force on the 2 July 2012, when an administrative order declared selected lands around the Letpadaung site off limits, and have lasted 106 Ibid, Art 18. 107 Ibid, Art 24 (a)(b). 108 Ibid, Art 5. 109 Human Rights Watch, Burma: Investigate Violent Crackdown on Mine Protesters, 1 December 2012, available at: , accessed 22 March 2013. 110 On 5 March 2013, three villagers from the Letpadaung area filed a lawsuit against President Thein Sein, who they say should take responsibility for the crackdown on the 29 November. The suit was accepted by the regional office, but later rejected.


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until the 18 March 2013. It was then that many farmers, no longer able to reach their farms, realized that their lands had been officially confiscated for the sake of the project and that the compensation that they had received was meant for the loss of their land rights. Villagers reportedly filed complaints with local authorities,111 but apparently unsatisfied with the result of this effort they began the process of organizing resistance. By the end of July when their efforts to be heard began to disrupt work around the site and irritate those working at the mine company headquarters, a curfew (under section 144 of the penal code) was imposed around Salingyi Township. Mid-August saw what the Irrawaddy called “skirmishes [break] out between villagers and the mining company”112 and a 500-person strong march, by residents of the closest villages that were scheduled for relocation, to the administrative office of Salingyi Township, which was turned back by security forces.113 By the end of August, almost 2 months after the locals affected by the project began their demonstrations, The Farmland Law and The Vacant, Fallow and Virgin Land Law came into force. These land laws have been highly controversial as they are open to abuse (as discussed earlier). Thus the efforts of the Letpadaung villagers started to draw serious national attention and pique the interest of regional and international media. The high period of protest was from September 2012 to January 2013. The media (except MG news) was drawn to what by mid-November were the almost daily demonstrations centring on the land grabs around the Letpadaung mountain. As the protest gained momentum their cause began to symbolize the entire nation’s struggle against land grabbing. Citizens from different ethnic and political groups started supporting their cause. The Letpadaung protesters have been very imaginative in their efforts to bring attention to their plight and raise awareness of the issues affecting them. On 10 September, a group organized a “mountain gazing” gathering to underline the importance of the mountain, and its place in the landscape, that they were likely to lose. On 12 September saw one of the first of the public meetings that were to be organized to discuss the issue and that would bring national figures from historical resistance groups like Generation 88.114 Environmental and legal groups, like the Burma Lawyers Network and Seinyaungso, an environmental NGO from Mandalay, began to cooperate with the protesters, conducting

111 Mann Zarni, “Farmers Persist in Fight to Halt Monywa Copper Mine”, The Irrawaddy, 11 October 2012, available at: , accessed 22 March 2013. 112 See supra note 44. 113 Ba Kuang, “Chinese Weapons Maker to Mine Monywa Copper”, Irrawaddy, 24 June 2010. 114 A group of former students that had been involved in the 1988 uprisings.


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surveys, and reviewing the agreements that had been made between the locals and the company. By 26 September enough attention had been drawn to the issue that a rare press conference was held by the UMEHL’s Maung Maung, the Project Department Director, who said that they would negotiate with the residents surrounding the Monywa Copper Mines. It was not long before this fight took on another dimension. It became not only a symbol of resistance to land grabbing, which became a secondary theme in media discourse, but an exercise in public freedom of speech and expression. October (Figure 7) was a high in terms of reporting of these events (again, prior to the 29 November). Attention was being drawn to the importance of the situation as a test for the reforms and the people’s constitutional right to protest. Theatrical performances, toddy palm plantation, graveyard sit-ins,115 and many other inventive forms of peaceful protest were carried out during this month drawing attention to their cause and to their determination to be seen and heard. As the Asian Human Rights Commission has said, this case encompasses “all dimensions of the struggle for political, legal, and social change in Myanmar [Burma] today, including fundamental rights to freedom of speech and assembly, to organize and hold opinions, and to participate fully in public life without fear of persecution or violence,” (RFA). Thus this was a test of the reforms taking place and to what degree the basic freedoms of the Burmese people are supported by the new regime. With mounting anti-China sentiments in the country, Wanbao Mining Company’s Geng Yi, the Managing Director of the Myanmar operations, held a

Number of Articles

30 25 20

Land Grab

15

Compensation

10

Environment

5

Crackdown/Raid

0 Before Sep-12 Oct-12 Before From 29 Dec-12 Jan-13 Feb-13 Sept 29 Nov Nov 2012

Injured Monks

Figure 7: Number of articles for entire period

115 9 October over 1,000 people demonstration at graveyards in Sinde.


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mid-October press conference in Yangoon.116 Critics of the project have gone so far as to compare it to the legendary Myitsone Dam case. These negative sentiments have been reinforced by statements such as those made by Burmese minister Aung Min, who has been well reported as saying “we [Myanmar] are afraid of China” and “[i]f they feel annoyed with the shutdown of their projects and resume their support to the communists, the economy in border areas would backslide. So you’d better think seriously”.117 However, there have been efforts to curb this trend, made by Aung San Suu Kyi, a favourite of the media, who told gathered villagers that “we [Myanmar] have never regarded the People’s Republic of China as our benefactor. But it is our neighbouring country so we want to be a friend”.118 Resistance to the expansion project, its land grabs and environmental damage have included several law suits (filed by both sides). The first round of legal action was taken between 5 and 9 October. When both parties filed suit in Sarlingyi Township, villagers aimed to sue both UMEHL and Wanbao. The second round was on October 18th, when the Monywa Mine company officers “filed a defamation lawsuit” against several activists involved in the protest and another, that it withdrew, against the DVB for falsely reporting their destruction of a pagoda on their site.119 The issue of the “pagoda destruction” was a case that clearly demonstrated the power of the media and its responsibility, as the outrage that immediately swept through the predominantly Buddhist nation held even after the news that it had been a false report. But those feelings of outrage, and the protests they spurred in the centre of the country, were the precursors to those seen after the November 29th crackdown. Another method that the protesters employed was to encourage an already existing trend, namely to universalize their resistance and to make their protest a platform from which to begin to discuss other ills plaguing the nation. On 18 October, the first Letpadaung People’s Conference was held. It attracted over 40

116 Myanmar Times, “Chinese Mining Firm Threatens Legal Action”, 22 October 2012, available at: , accessed 22 March 2013. 117 Kyaw Phyo Tha, “Fear of China Keeps Copper Mine Open: Aung Min”, The Irrawaddy, 26 November 2012, available at: , accessed 22 March 2013. 118 AFP, “Suu Kyi Demands Apology for Crackdown on Protestors”, Democratic Voice of Burma, 30 November 2012, available at: , accessed 22 March 2013. 119 Mizzima, “Both Sides File Suits in Mine Protest”, 11 October 2012, available at: , accessed 22 March 2013.


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organizations and their support from all over Myanmar. Their committee organized and educated those wanting to protest or looking for ways to aid them, as well as helping all involved look beyond their own struggle.120 Serious sit-ins began from around 18 November, with protesters located in 4–6 major camp sites within the “project grounds.” Others, according to Irrawaddy eyewitnesses, set-up “in front of the Myanmar-Wanbao Mining Company office on the Monywa-Pathein Road, and … at the Lelti [Ledi] Sayadaw Buddhist Building near Kyawyar Village”.121 It was from this time that the mining operations ceased. However, as protests began to heat up, and articles focused less and less on the underlying issues of land grabbing, compensation and environmental damage, a parliamentary decree called for the creation of an investigatory commission. It was announced just when larger protests were gathering for marches in the capital cities of Yangoon and Naypidaw. With the announcement of the creation of the commission came an ultimatum: a midnight deadline of the 27 November was ordered by the Government for the end to protests; failure to do so would mean “legal action”.122 An announcement to which most reacted by evacuating the sites. However, some stayed, along with around one hundred monks.123

6.3 29 November dawn break-up of the protest A turning point in the events, and in the discourse, surrounding the Letpadaung project came on 29 November 2012, when the riot police violently raided the remaining six protest camps (see Figure 4 for change in trend). By the early weeks of November, this land grab issue had become a national topic of interest. The Letpadaung case came to symbolize all land grab–related struggles around the country, with the protest effort setting standards for peaceful resistance in a new political era. Conflict, being a “favourite” of media, is both a selling point of media and a cause for media. Thus, as has been discussed, in this case study as protests, “public mobilization,” grew so did media coverage. However, when violence 120 Issues such as the Kachin and Rakhine conflicts, the SEZs, and other land grabs were all discussed at this conference. 121 Nyein Nyein, “Monywa Copper Mining Protest Resumes”, The Irrawaddy, 20 November 2012, available at: , accessed 22 March 2013. 122 Burma Partnership, “Authorities Arrest Mine Activists”, 27 November 2012, available at: , accessed 22 March 2013. 123 Actual figures vary widely, from 100 to 300.


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broke into the narrative mass media accelerated their reporting, and international news held the story more consistently. The “land grab” narrative, a less visual and universally emotive issue124 was entirely sidelined by the events of 29 November. At around 3:00 am of the morning that Aung San Suu Kyi was due to arrive and calm the situation with the protesters, the riot police raided the remaining six protest camps.125 In the pre-dawn, protesters were given 5 minutes to clear out. The police action turned violent when smoke bombs containing a flammable compound – at the time suspected to be military-grade white phosphorus – burnt camp, protesters and monks alike. Months later it still remained unclear who had actually been responsible for ordering this raid as the final report released by the Letpadaung Investigation Committee made no mention of this. Over 100 were injured, mostly young monks, with second- and third-degree burns.126 Media immediately took up this story, fanning the flames of national outrage as photographs of the injured monks were carried, poster size, by protesters and demonstrators, in numbers previously unseen. Figure 4 shows the spike in the number of articles appearing related to the Letpadaung case after 29 November, 68% of them focused on the crackdown and its excessive use of force. The media groups vary greatly in their labelling of the events however. MB media such as The New Light of Myanmar reported on 29 November actions as being “riot suppression procedures” and “unavoidably dispersed”.127 CG sources similarly refer to them as “disperse action[s]”.128 In contrast, FBL media cite the actions of that night as a “brutal police raid,”129 and as a “crackdown”.130 International media followed along the lines of the FBL, using words like “crackdown” and “break-up,” but in not as damning terms. On 30 December Aung San Suu Kyi called on the government to express regret for what had happened and for an apology from those involved. The

124 When compared to the theme of state-run violence and injured monks, and considering the knowledge divide between urban and rural residents in terms of the significance of land. 125 Recall the administrative order to evacuate the site by the 27 midnight. 126 The average amount reported in over 40 articles after 29 November 2012. 127 The New Light of Myanmar, 10(225), 1 December 2012. 128 Xinhua, “Myanmar Police Apologizes for Wounding Some Monks Among Protestors in Disperse Action”, 2 December 2012, available at: , accessed 22 March 2013. 129 Zarni Mann, “Court Rejects Complaint against President over Protest”, Irrawaddy, 11 March 2013, available at: , accessed 22 March 2013. 130 Mizzima, “International Condemnation for Monywa Crackdown”, 2 December 2012, available at: , accessed 22 March 2013.


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Irrawaddy reported that The Upper Burma Monks organization of Mandalay were calling on the Burmese government to “formally apologize for the action within five days, to provide sufficient health care for those who were injured and to release seven monks they say were detained”.131 On the 1 December the police apologised to the head monks, but it was not until the middle of the same month that the government officially apologised for the actions taken, after thousands protested at U Pwar and Eaintawyar Pagodas, Pakokku, and hundreds more in Mandalay centre. In a ceremony held 15 December in Atumashi Monastery in Mandalay’s Aung Myay, Thar San Township, the Myanmar Government officially apologised to the monks for the violent crackdown.132 This was an unprecedented move that signalled to many that their demands for a show of regret had been heard and respected and that, more importantly, the government was sincere in its claims of reform. The difference in reporting about the events, however, is extremely pronounced when comparing the CG and MG news with the LFB media. The Xinhua CG news reported that “the monks have occupied the project’s restricted area since 18 November. Despite step-by-step appeal, the demonstrators continued to stay unlawfully up to 28 November, forcing the police to unavoidably disperse them”.133 Xinhua, CG backed newspaper and MG backed news are the only ones that mention the “illegality” of the sit-ins, or “boycott camps,” located within “Project” land. They rightly point out the step-by-step process that the government followed in order to end the protest, which began with the announcement of the investigatory committee. In essence, the situation following the establishment of the Letpadaung Committee is a “clean-up” job, resulting from non-transparent and past dealings between the military backed UMEHL, the then government and the investing Chinese company. However, in response to a proposal put forward to the Pyithu Hluttaw on the 23 November 2012, concerning the copper mine expansion project and the protests in Salingyi Township, Monywa District, Sagaing Region, and made more urgent by the violent crackdown on the protesters on 131 Yadana Htun, “Suu Kyi Wants Gov’t Apology for Violent Crackdown”, The Irrawaddy, 1 December 2012, available at: , accessed 22 March 2013. 132 Phy o Wai Kyaw and Than Naing Soe, “Myanmar Makes Apology to Monks Over Copper Mine Crackdown”, 24 December 2012, available at: , accessed 22 March 2013. 133 Xinhua, “Myanmar Clarifies Copper Mining Project Incident”, Xinhua English News, 1 December 2012, available at: , accessed 22 March 2013.


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29 November, the President announced the creation of an Investigation Commission.134 1 December 2012 the New Light of Myanmar printed that the Investigation Commission135 was to determine whether the “copper mining should be continued and to find out the true situation about the recent containing of protest in Letpadaungtaung [sic] Copper Mining Project in Salingyi Township, Monywa District, Sagaing Region”.136 The commission was made up of some 41 members (including Ang San Suu Kyi as Chairman and one secretary), including activists from the 88 generation group, ministers from the Ministries of Environmental Conservation and Forestry, Science and Technology, Health, Mining, and five representatives from the Sagaing district and affected townships. The report was submitted on the 11 March 2013.137 It was found that the project had improperly confiscated 1,900 acres (769 hectares) of land which the report recommended should be returned and the expansion plans re-drawn. Additionally, it recognized that there had been improper methods (intimidation, threats) used to “acquire” consent to use lands and relocate villagers. Before the report was completed, Aung San Suu Kyi reportedly said at a press conference on 10 December that “[i]t’s certain that we can’t come up with an answer that will satisfy everyone. There will be some people who are satisfied and some who are not. It is not the commission’s duty to make everyone happy. However, we will try to give the best answer in the interests of the state and people in the long term”.138 At the time of writing it appeared that the government had already decided to allow the expansion project to continue, calling for the “amending [of the] contract signed between Myanma Economic Holdings Co Ltd and Wanbao Company” in its press release of 11 March 2013.139 In order to implement the recommendations of the report a committee was established on 12 March, which has already begun the work of righting some of the wrongs done to those affected by the land grabs. However, not all those affected were satisfied with the results and clashes with police forces occurred again as protests continued around the company site.

134 The New Light of Myanmar, 10(246), 26 December 2012. 135 Notification No. 92/2012 of 3rd Waxing of Tazaungmon (National Calendar marker) 1374 ME. 136 The New Light of Myanmar, 10(251), 24 December 2012. 137 After two delays, 31 December and the 1 February were the first deadlines, with an interim report given to the President on the 31 January 2013. 138 Ei Ei Toe Lwin, “Commission will Find Fair Solution, Says NLD Leader”, The Myanmar Times, 10 December 2012, available at: , accessed 22 March 2013. 139 As reported in The New Light of Myanmar, 13 March 2013.


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7 Conclusions The media discourse shifted its focus throughout the time period in a way that reflected the changing legal and political situation in the country. As the protest grew, their reporting followed and new themes were prioritized. The conflict was originally centred on land grabs, compensation and environmental concerns. But as legislation developed to permit freedom of demonstration and of press, protesters are emboldened and media follows in their wake. The Letpadaung Mine land grab morphed from a struggle for the protection of citizens’ right to land and work, to one for their right to free expression without fear of repression. International media then picked up the narrative and exported the issue as a test case for a reforming Myanmar regime. This trajectory was altered by the 29 November crackdown. Violence being a “simple” and universally recognized motif, one that can be immediately denounced, media coverage prioritized this theme. However, although potentially less identifiable themes, the original concerns of protesters over the land grabs and environmental damage were not entirely subsumed by the later more “dramatic” elements. Support for the protesters spread initially as their case resonated with other national land grab events. The increase in coverage volume, nationally, regionally and internationally that grew with the popularity of the protest demonstrated a trend that may have continued without the catalyst of the 29 November raid. The inventive and organized methods employed by the protesters from the outset pulled in national media interest and then in turn accelerated national support for their conflict. Media news reporting will continue to play a major role in the future of this conflict. However, as each government and non-governmental news source vies for the hearts and minds of its target audience, they may choose to prioritize elements that may misdirect attention from the core issues. This re-focusing is to the detriment of those affected by the conflict and places the rest of the narrative out of context. Acknowledgements: Many thanks for the kind and informative support of Dr. Koichi Fujita, Dr. Fumiharu Mieno, Dr. Yasuyuki Kono and Dr. Pavin Chachavlpongpun of the Center for Southeast Asian Studies at Kyoto University.

References Article 19, Myanmar: The Decree on the Right to Peaceful Assembly and Peaceful Procession (2012), available at: , accessed 10 June 2013.


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Asian Human Rights Commission, BURMA: Farmers rise up at land grab by army-owned company (13 September 2012), available at: , accessed 22 March 2013. Assistance Association for Political Prisoners, “President U Thein Sein: Immediately Investigate and Bring to Justice the Police Responsible for Grave Crimes Committed Against Peaceful Demonstrators”, Burma Partnership, 29 November 2012, available at: , 22 March 2013. Burma Lawyers Council, Burma’s Election and Constitutional History: A Snapshot, Legal Issues on Burma Journal, no. 7 (December 2000), available at: , accessed 15 June 2013. Burma Partnership, “Authorities Arrest Mine Activists”, 27 November 2012, available at: , 22 March 2013. Burma Partnership, “Mining, Repression and Imprisonment, an Uncertain Future,” 8 October 2012, available at: , 22 March 2013. Burma Partnership, “Rampant Land Confiscation Requires Further Attention and Action from Parliamentary Committee”, Burma Partnership, 12 March 2013, available at: , 22 March 2013. CIA, “Burma”, The World Factbook, available at: , accessed 28 April 2013. Centre for Independent Reporting, “Burma: Co-Founder of Myanmar Times on Trial”, available at: , accessed 26 April 2013. FAO, What Is Land Tenure, available at: , accessed 28 April 2013. FAO, Foreign Direct Investment –Win-Win or Land Grab? (November 2012) available at: , accessed 22 March 2013. Fujita, K., F. Mieno, and I. Okamoto, The Economic Transition in Myanmar After 1988: Market Economy versus State Control (Kyoto: Kyoto University Press, 2009). Galtung, J., Transcend & Transform, an Introduction to Conflict Work (London: Pluto Press, 2004). Herman, S. E., and N. Chomsky, Manufacturing Consent (London: Vintage, 1994). Human Rights Watch, Burma: Investigate Violent Crackdown on Mine Protesters, 1 December 2012, available at: , accessed 22 March 2013. Ivanhoe Mines Ltd, Annual Information Form For the year ended December 31, 2007, 28 March 2008, available at: , accessed 22 March 2013. Ivanhoe, Monywa Copper Mines Fact Files, available at: , 22 March 2013. Ivanhoe, Ivanhoe Mines Receives Proceeds of US$103 Million from Monywa Trust: Ivanhoe Mines Statement, 3 August 2011, , accessed 22 March 2013.


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Karmasin, M., and G. Melischek et al., “Perspectives on the Changing Role of Mass Media in Hostile Conflicts”, in J. Seethaler et al. (eds.), Selling War: The Role of the Mass Media in Hostile Conflicts from World War I to the “War on Terror”, European Communication Research and Education Association Series (Bristol: Intellect Ltd, 2013). McLaughlin, B., and B. Coleman (eds.), Everyday Theory a Contemporary Reader (New York: Pearson Longman, 2005). Leckie, S., and E. Simperingham, Housing, Land and Property Rights in Burma: The Current Legal Framework (Thailand: Displacement Solutions and the HLP Institute, 2008). Penzerr, N.M., The Mineral Resources of Burma (London: George Routledge and Sons, 1922). Reporters Without Borders, Press Freedom Index 2013, available at: , accessed 1 May 2013. Reporters Without Borders, Retrograde Bill ThreatensTentative Progress, available at: , accessed 28 April 2013. Ripley, E.A., R.E. Redmann, and A.A. Crowder, Environmental Effects of Mining (Florida: St. Lucie Press, 1996). Sri Su Wan. Phone Interview. 14 February 2013. Steinberg, I.D., Burma/Myanmar: What Everyone Needs to Know (Oxford: Oxford University Press, 2010). Tee Tee Cho, Environmental Law of Myanmar, 1 Singapore Journal of international and Comparative Law, no.1 (1997), available at: , accessed 10 July 2013. Transparency International, Myanmar, available at: , accessed 27 April 2013. UNESCAP, Integrating Environmental Considerations into Economic Policy Making Processes in Myanmar, ESCAP Virtual Library, available at: , accessed September 2012. Win, M.K., Rival Constitution Writing Processes: A Problem in National Reconciliation in Burma, 7 Legal Issues on Burma Journal, no.7 (December2000), available at: , accessed 20 June 2013. Woods, K., Ceasefire Capitalism: Military–Private Partnerships, Resource Concessions and Military–State Building in the Burma–China Borderlands, 38 The Journal of Peasant Studies, no. 4 (2011).

Laws Constituent Assembly of Burma, Foreign Office, The Constitution of the Union of Burma (1947), 24 September 1947. Government of Singapore, Constitution of the Republic of Singapore (1965). Government of the Republic of Myanmar, The Environmental Conservation Law, 30 March 2012. Government of the Republic of the Union of Burma, The Constitution of the Socialist Republic of the Union of Burma (1974), 3 January 1974. Government of the Republic of the Union of Myanmar, Constitution of the Republic of the Union of Myanmar (2008), 29 May 2008, version 2010. Print. Government of the Republic of the Union of Myanmar, Ministry of Agriculture and Irrigation, The Farm Land Rules, 31 August 2012.


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Government of the Republic of the Union of Myanmar, Ministry of Agriculture and Irrigation, The Vacant, Fallow and Virgin Lands Management Rules, 31 August 2012. Government of the Republic of the Union of Myanmar, Ministry of Home Affairs, Regulations relating to the Right to Peaceful Assembly and Peaceful Procession, 5 July 2012 [Unofficial translation]. Government of the Republic of the Union of Myanmar, Pyidangsu Hluttaw, The Farm Land Law, March 30 2012, [Unofficial Translation by UN-Habitat]. Government of the Republic of the Union of Myanmar, Pyidangsu Hluttaw, The Vacant, Fallow and Virgin Lands Management Law, 30 March 2012 [Unofficial Translation by UN-Habitat]. Government of the Republic of the Union of Myanmar, Pyidangsu Hluttaw, The Right to Peaceful Assembly and Peaceful Procession Act, 2 December 2011. Ministry of Forestry, National Sustainable Development Policy for Myanmar (2009), available at: , accessed 10 July 2013. The State Law and Order Restoration Council, The Law Protecting the Peaceful and Systematic Transfer of State Responsibility and the Successful Performance of the Function of the National Convention against Disturbances and Oppositions, 7 June 71996, available at: , accessed 10 June 2013. The State Law and Order Restoration Council, The Myanmar Mines Law, 6 September 1994. UN Treaty Collection, Status of The International Covenant on Civil and Political Rights, available at: , accessed 9 July 2013. UN Treaty Collection, Status of The International Covenant on Social, Economic and Cultural Rights, available at: , accessed 9 July 2013.

Other Media Sources AFP, “Suu Kyi Demands Apology for Crackdown on Protestors”, Democratic Voice of Burma, 30 November 2012, available at: , accessed 22 March 2013. Aung Hla Tun, “Myanmar State Media Details New Foreign Investment Law”, Reuters, 3 November 2012, available at: , accessed 6 November 2012. Eleven, About Us, available at: , accessed 28 April 2013. RFA – Radio Free Asia, “Copper Mine to Proceed,” 18 October 2012. Reuters, “In Reforming Myanmar, a Junta Mouthpiece Gates a Makeover”, available at: , accessed 28 April 2013.


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Article Perry S. Bechky*

International Adjudication of Land Disputes: For Development and Transnationalism Abstract: This short article offers two observations about international adjudication of land disputes. First, the article shows that such adjudication is intended to further development, but that this goal is served better, if counter-intuitively, by rejecting the so-called Salini contribution-to-development test in favor of case-bycase adjudication on the merits. Second, the article locates such adjudication within the modern trend toward transnationalism, a trend that unites international investment law with human rights law. In light of these observations, the article concludes that international adjudication of land disputes may contribute to such human values as development, human rights, and the rule of law. Keywords: investment arbitration, international adjudication, land disputes, transnationalism, development DOI 10.1515/ldr-2014-0009

Liz Alden Wily’s paper and other contributions to this special issue discuss “the current land rush,” “a contemporary surge in global, large-scale land acquisitions.”1 With this surge comes controversy. The Food and Agriculture Organization, for example, has published a report titled “Land Grab or Development Opportunity?”2 This short contribution to the special issue offers two observations about international adjudication of land disputes. Part 1 shows that such adjudication is intended to further development, but that this goal is served better, if counter-intuitively, by rejecting the so-called Salini contribution-to-development 1 Liz Alden Wily, The Law and Land Grabbing: Friend or Foe?, this special issue. 2 Lorenzo Cotula et al., Land Grab or Development Opportunity? Agricultural Investment and International Land Deals in Africa (London/Rome: IIED/FAO/IFAD, 2009). *Corresponding author: Perry S. Bechky, Principal, International Trade & Investment Law and Visiting Scholar, School of Law, Seattle University, Seattle, USA, E-mail: [email protected]


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test in favor of case-by-case adjudication on the merits. Part 2 locates such adjudication within the modern trend toward transnationalism, a trend that unites international investment law with human rights law.

1 Land disputes and development In an arbitration filed in 2011 at the International Centre for Settlement of Investment Disputes (“ICSID”), a Malaysian company called Ekran Bhd. claimed that a local government in Hainan, China, had violated the bilateral investment treaty (“BIT”) between China and Malaysia by terminating Ekran’s leasehold rights to develop “arts and culture facilities” on 900 hectares of land. China argued the local government had the right to terminate the lease, because the investor had failed to develop the land.3 Cases like Ekran4 evoke Salini’s development test.5 Article 25 of the ICSID Convention gives ICSID jurisdiction over “any legal dispute arising directly out of an investment, between a Contracting State … and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre.”6 In 2001, in Salini v. Morocco, an ICSID tribunal held that the “investment requirement” has objective content that limits ICSID jurisdiction. The tribunal added: The doctrine generally considers that investment infers: [i] contributions, [ii] a certain duration of performance of the contract and [iii] a participation in the risks of the transaction…. In reading the Convention’s preamble, one may add [iv] the contribution to the economic development of the host State of the investment as an additional condition.7 3 The parties quickly agreed to suspend the case, which was ultimately “discontinued” in May 2013, all before an arbitral tribunal was established. See Luke Eric Peterson, China is Sued for the First Time in an ICSID Arbitration, Investment Arbitration Rep. (26 May 2011); ICSID, List of Concluded Cases, available at: . Little information about the case has been made public, including whether China paid to settle it. 4 Ekran Bhd. v. China, ICSID Case No. ARB/11/15 (discontinued 16 May 2013). 5 Indeed, Tomer Broude has suggested that cases like this deserve their own classification as “international development disputes,” in that they “requir[e] determinations under international law that have significant ramifications for the design and implementation of development policy.” Tomer Broude, “Development Disputes in International Trade”, in Y.S. Lee et al. (eds.), Law and Development Perspective on International Trade Law (Cambridge: Cambridge University Press, 2011), pp. 8–9. Broude’s suggestion raises interesting questions about what practical consequences might follow from such a classification, questions whose answers he has not yet fleshed out. See id., p. 24. 6 See Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, opened for signature 18 March 1965, 575 U.N.T.S. 159, art. 25(1) (emphasis added). 7 Salini Construttori S.P.A. v. Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction, ¶ 52 (July 23, 2001), translated in 42 I.L.M. 609 (2003).


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ICSID tribunals ever since have wrestled with Salini’s objective approach to investment: some have followed it, others have rejected it, while still others have proposed a variety of alternatives to its four-part “test.”8 One may readily imagine a government invoking Salini’s last prong to object to ICSID jurisdiction over a case like Ekran. Such an argument would follow this path: the company did not develop the land as it was supposed to do, therefore it did not contribute to economic development, therefore it did not make an “investment” as construed by Salini, therefore its claim did not “aris[e] directly out of an investment” as required by Article 25, and therefore ICSID lacked jurisdiction over the claim. The contribution-to-development rule has some appeal. First, development should be understood as ICSID’s purpose, or at least its intermediate purpose en route to improving human welfare, a true end.9 Development is enshrined in the preamble to the ICSID Convention, which is predicated on “the need for international cooperation for economic development.” Indeed, concern for development explains ICSID’s very existence: the World Bank – that is, the International Bank for Reconstruction and Development – conceived ICSID, sponsored the talks to create it, and continues to house ICSID and provide it other institutional support “to further [the Bank’s own] overall purpose of promoting economic development in the world’s poor countries.”10 The contribution-to-development test might therefore be seen as an interpretative gloss furthering the “object and purpose” of the ICSID Convention.11 Second, the contribution-to-development rule appeals to a certain sense of fairness: it requires a quid pro quo, much like the consideration requirement in common law contracts. By consenting to ICSID arbitration, states give something valuable to investors. One may reasonably suppose that what developing

8 See Perry S. Bechky, Microinvestment Disputes, 45 Vand. J. Transnat’l L. (2012), 1043, 1045– 1047 (surveying the cases). For my “third way” alternative to Salini’s objectivism or pure subjectivism, see id., pp. 1053–1063 (advocating “bounded deference”). 9 Cf. UN Declaration on the Right to Development, A/Res/41/128, 4 December 1986, ¶2(1) (“The human person is the central subject of development…”). The arguments in this paragraph are developed further in Bechky (2012), supra note 8, pp. 1064–1067. 10 Andreas F. Lowenfeld, International Economic Law (2nd ed., Oxford: Oxford University Press, 2008), p. 537; see also Int’l Bank for Reconstruction and Dev., Report of the Executive Directors on the Convention of the Settlement of Investment Disputes Between States and Nationals of Other States, ¶ 9 (18 March 1965) (“In submitting the attached Convention to governments, the Executive Directors are prompted by the desire to strengthen the partnership between countries in the cause of economic development.”). 11 See Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, art. 31.1.


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countries expect to receive in return is investment that contributes to development.12 The contribution-to-development test might therefore be seen as a means of assuring that a claimant gave the quid before it gets the quo. Third, Wily’s paper also discusses Chief Justice John Marshall’s opinion for the U.S. Supreme Court in Johnson and Graham’s Lessee v. M’Intosh, which points to a third argument of particular interest to this special issue.13 That case arose from competing claims to ownership of the same land, one derived from the U.S. Government and the other from the Piankeshaw Indians. The Court held that no title to land could be acquired from Indians. After reviewing the history of European discovery and conquest of North America and the applicable rules of international law, the Court concluded that Indians had only “the right of occupancy” on land where they lived, but not the right to “dispose of the soil,” as they had lost that latter right by conquest.14 The Court acknowledged that “this restriction [on transferability] may be opposed to natural right, and to the usages of civilized nations,” and defended its holding essentially on the ground of practical necessity. Yet, the Court added: Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them. … [T]he tribes of Indians inhabiting this country were fierce savages whose occupation was war and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness…15

The Court thus appears to have accepted that the desirability of development provided “some excuse” for seizing control of Indian lands. Put differently, in Chief Justice Marshall’s eyes, the Indians’ failure to contribute to development had weakened their claim to the land.16 Where contribution-to-development was 12 See, e.g., M. Sornarajah, The International Law on Foreign Investment (3rd ed., Cambridge: Cambridge University Press, 2010), p. 313 (“The very essence of the system of investment protection … is economic development… Subjection to … the ICSID system is achieved at the cost of a surrender of sovereignty, and this is justified by the belief that economic development will take place as a result.”). 13 See Wily, supra note 1, p. 9. 14 Johnson & Graham’s Lessee v. M’Intosh, 21 U.S. (8 Wheat.) 543, 574, 583, 591 (1823). 15 Id., pp. 589–590. 16 The defendant, relying on Grotius and Pufendorf as well as Locke, argued that “the North American Indians could have acquired no proprietary interest in the vast tracts of territory which they wandered over,” because such use was “not exclusive” and therefore not sufficient “to prevent their being appropriated by a people of cultivators.” Id., pp. 569–570. The Court did not expressly adopt defendant’s argument.


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once invoked against indigenous populations, Salini now seems to hold investors to the same standard. The contribution-to-development test might therefore be seen as sauce for the gander. Nevertheless, despite its allure, Salini’s temptation should be resisted.17 Contribution to development is not part of the “ordinary meaning” of the word “investment.” By reading this test into Article 25, tribunals are displacing the judgment of Member States about how best to use ICSID.18 The ICSID Convention gives Member States broad discretion to determine in good faith which matters to submit to ICSID arbitration, relying on State consent as the touchstone of ICSID jurisdiction, and arbitral tribunals ought not constrain that discretion unduly. Tribunals, moreover, are ill-equipped to make the kinds of judgments necessary to determine whether an investment has made a contribution to development. Indeed, one tribunal found it “impossible to ascertain” whether an investment contributes to development, “the more so as there are highly diverging views on what constitutes ‘development.’”19 The trouble with trying to define “development” is exacerbated by the radically different states of development that exist in the world. Is it even possible for an investment to contribute to the development of a country that is already developed?20 Is it fair to set the jurisdictional bar higher for claims against developed countries than for claims against developing countries?

17 Some of the arguments in the discussion that follows are elaborated in Bechky (2012), supra note 8, pp. 1067–1072, 1084–1093. 18 In this regard, post-Salini state practice generally evidences a continuing desire to have ICSID hear cases without a contribution-to-development test, even where states have otherwise adopted elements of Salini. For example, the ASEAN regional investment treaty and the ChinaJapan-Korea trilateral investment treaty both consent to ICSID arbitration of disputes arising from an “investment” and both incorporate elements of Salini into their definitions of “investment,” but neither takes Salini’s contribution-to-development prong. See ASEAN Comprehensive Investment Agreement arts. 4(c) & n.2, 33(1), 26 February 2009; Agreement for the Promotion, Facilitation and Protection of Investment, China-Japan-Korea, arts. 1(1), 15(3), 13 May 2012; but see Southern African Development Community, SADC Model Bilateral Investment Treaty Template with Commentary, art. 2 & cmt. (2012) (advocating inclusion of contribution-to-development in the definition of “investment”). 19 Phoenix Action, Ltd. v. Czech Republic, ICSID Case No. ARB/06/5, Award, ¶ 85 (15 April 2009). 20 To be sure, the answer to this rhetorical question depends on one’s understanding of “development.” Under at least some conceptions, “development” is an ever-continuing project such that no country can ever be fully “developed.” See, e.g., UN Declaration on the Right to Development (1986), supra note 9, pmbl. (“[D]evelopment is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals”).


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The development prong may even harm the cause of development.21 It adds cost and unpredictability to ICSID arbitration, diminishing ICSID’s promise as a means to attract investment by assuring investors access to a reliable forum for resolving disputes.22 The impact falls most heavily on smaller investors, who have the greatest need for the assurance ICSID provides. While it is difficult to prove that any one small investment has contributed to development of the host state, the cumulative impact of small investments is massive. For example, smaller businesses generate 95.4% of new jobs in low-income countries.23 Salini’s development prong should therefore be rejected (even where the rest of Salini is followed). The better alternative is to let investors have their “day in court,” with case-by-case adjudication on the merits of each claim. This alternative, it must be stressed, does not mean that investors will always win. To the contrary, states enjoy a considerable degree of freedom to regulate land in the public interest.24 Consider several examples evidencing this regulatory flexibility: – The U.S. Model BIT provides, “Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and the environment, do not constitute indirect expropriations.”25

21 The word “may” in the main text indicates an important limit on the claim made in this critique. The argument is essentially theoretical, relying on the theories underpinning ICSID’s foundational syllogism and the idea that raising costs and risks for smaller investors will affect their actions on the margins. In this regard, I believe that ICSID’s own premise is essentially theoretical, as the empirical jury is still out. See Bechky (2012), supra note 8, pp. 1092–1093. 22 See, e.g., Pantechniki SA Contractors and Engineers (Greece) v. Albania, ICSID Case No. ARB/07/21, Award, ¶ 43 (30 July 2009) (criticizing the development prong for “introduc[ing] elements of subjective judgment... which (a) transform arbitrators into policy-makers and above all (b) increase unpredictability about the availability of ICSID to settle given disputes”). 23 Meghana Ayyagari et al., Small vs. Young Firms Across the World: Contribution to Employment, Job Creation, and Growth 14 (World Bank Dev. Research Grp., Policy Research Working Paper No. 5631, 2011). 24 In this regard, a commenter suggested that the state’s freedom also entails the freedom to decide which cases to submit to ICSID. I agree. Consent is the cornerstone, the sine qua non of ICSID jurisdiction. See Bechky (2012), supra note 8, pp. 1053, 1057–1063. The point of Salini’s development prong, however, is that arbitrators may decide – even where the state has consented to jurisdiction – that ICSID cannot hear a case simply because the arbitrators conclude that the claimant failed to prove that it had contributed to development of the host state. It is the consent imperative, not Salini’s objectivism, that best aligns with state discretion to set development policy. 25 2012 U.S. Model Bilateral Investment Treaty, Annex B, ¶ 4(b).


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The U.S. Model BIT also provides, “Nothing in this Treaty shall be construed... to preclude a Party from applying measures that it considers necessary for... the protection of its own essential security interests.”26 Drawing on Article XX of the General Agreement on Tariffs and Trade, the Canadian Model BIT exempts nondiscriminatory measures “necessary: (a) to protect human, animal or plant life or health;… or (c) for the conservation of living or non-living exhaustible natural resources.”27 The ASEAN regional investment treaty has language similar to both the Canadian “general exceptions” and the U.S. “security exceptions.”28

These examples demonstrate that states often have significant latitude to regulate land to promote development. To be sure, none of them expressly references “development” by name. Regardless, their language provides ample space within which states may act to promote development, which is undeniably a “legitimate public welfare objective.” Indeed, just as Argentina has argued (with some success) that the measures it took in response to its 2001 financial crisis were justified under the “essential security” exception,29 one may imagine circumstances where a government could invoke the same exception to defend measures taken to assure that land is developed properly to meet the needs of “food security” or “energy security.” In the end, whether government action in any particular land controversy violates an investment treaty must be assessed case-by-case in light of the specific facts and treaty language at issue. Finally, a critical instrument for assuring that international land deals serve the goal of development must not be overlooked: the lease itself. States should take care that each lease clearly specifies the lessee’s obligations – including making the necessary contributions (such as capital and technology) to develop the land according to specified schedules and regulatory standards that assure benefits (and avoid environmental and other harms) to the local population – and consequences for breach. Leases, moreover, should assure lessees that they will not be subjected to arbitrary or unreasonable government actions, but without shackling the government’s ability to protect the public interest in the uncertain future.

26 Id., art. 18. 27 Canada Model Agreement for the Promotion and Protection of Investments, art. 10(1) (2004). 28 ASEAN Comprehensive Investment Agreement (2009), supra note 18, arts. 17–18. 29 See generally Jürgen Kurtz, Adjudging the Exceptional at International Law: Security, Public Order and Financial Crisis, 59 Int’l & Comp. L.Q. (2010), 325 (reviewing five cases against Argentina and proposing “human security” as a means to determine when financial crises implicate “essential security interests”).


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2 Land disputes and transnationalism One criticism sometimes heard about investor-State dispute settlement is that it gives rights to foreigners above and beyond the rights available to citizens.30 George Gershwin has supplied one response to this criticism: It ain’t necessarily so. International adjudication may be made available for disputes between landowners and their own governments – indeed, it is sometimes available already.31 Consider the “white farmer” cases against Zimbabwe, which arose from Zimbabwe’s notorious response to the colonial legacy of land concentration.32 Funnekotter33 is a typical investor-State case: an ICSID tribunal found that Zimbabwe’s actions expropriated the claimants’ farmlands without compensation, in violation of the BIT between the Netherlands and Zimbabwe. Campbell34 is more interesting for present purposes: citizens of Zimbabwe brought an international claim against their own government. Funnekotter is transnational in the important sense that states have opened the door of international adjudication to private persons, recognizing private persons as subjects (and not mere objects) of international law.35 Campbell is still more profoundly transnational, as it exemplifies state acceptance of the 30 See, e.g., Lori Wallach and Todd Tucker, Public-Interest Analysis of Leaked Trans-Pacific Partnership (TPP) Investment Text, at 1 (June 13, 2012) (criticizing the draft TPP for giving “foreign firms … greater rights than domestic firms,” including “a two-track legal system, with foreign firms empowered to skirt domestic courts and laws”); Sarah Anderson, et al., Collective Statement, at 3–7, in Report of the Advisory Committee on International Economic Policy regarding the Model Bilateral Investment Treaty, anx. B (30 September 2009) (proposing seven changes to U.S. policy to “ensur[e] that foreign investors do not have greater rights than U.S. investors”). 31 To be clear, adjudication of disputes against one’s own government is not available at ICSID, as Article 25(1) of the ICSID Convention limits ICSID jurisdiction to cases between one Contracting State and investors from another Contracting State. Still, as discussed in this section, there are other international fora capable of hearing such disputes. 32 In 1999, before Zimbabwe started its “fast track land reform” program, about 28% of all arable land was owned by about 4,500 commercial farmers, mainly whites. Human Rights Watch, Fast Track Land Reform in Zimbabwe (2002), pp. 2–7. 33 Funnekotter v. Zimbabwe, ICSID Case No. ARB/05/6, Award (22 April 2009). A similar case under Zimbabwe’s BITs with Germany and Switzerland is still pending. See von Pezold v. Zimbabwe, ICSID Case No. ARB/10/25. 34 Mike Campbell (Pvt) Ltd. v. Zimbabwe, SADC (T) Case No. 02/2007, Judgment (28 November 2008). 35 Cf. Aron Broches, The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 136 Recueil des Cours (1972), 331 (“[T]he most striking feature of the Convention is that it firmly establishes the capacity of a private individual or a corporation to proceed directly against a State in an international forum, thus contributing to the growing recognition of the individual as a subject of international law.”).


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principle that international law constrains states’ treatment of their own citizens in their own territories. This is the transnationalism of human rights law,36 and its constraints are the defining feature of modern international law.37 The Zimbabwe cases thus spotlight the common ground between human rights law and international investment law.38 They share concern for property rights, if more centrally in investment law39; there are even human rights treaties that expressly extend the “human right” to property to legal persons.40 They share other concerns as well: for the rule of law, for constraints on illegal and arbitrary government actions, for access to fair and independent tribunals, and for effective remedies. Some individuals suffer from a mix of multiple offenses, as “investment concerns” like property takings and contract breaches may be combined with such “human rights concerns” as imprisonment, false accusations, and violence.41 As a result, similar cases may be heard before human 36 Cf. Restatement (Third) on the Foreign Relations Law of the United States, Part VII, introductory note (1987) (“The difference in history and in jurisprudential origins between the older law of responsibility for injury to aliens and the newer law of human rights should not conceal their essential affinity and their increasing convergence.”). 37 Cf. Philip C. Jessup, A Modern Law of Nations: An Introduction (New York: Macmillan, 1948), 2 (arguing that “international law, like national law, must be directly applicable to the individual” and that this is one of the two “keystones of a revised international legal order”). 38 For examples of other works on the convergence side of the ongoing “investment and human rights” debate, see Susan L. Karamanian, “Human Rights Dimensions of Investment Law”, in E. de Wet and J. Vidmar (eds.), Hierarchy in International Law: The Place of Human Rights (Oxford: Oxford University Press, 2012); Pierre-Marie Dupuy and Jorge E. Viñuales, “Human Rights and Investment Disciplines: Integration in Progress”, in M. Bungenberg et al. (eds.), International Investment Law (Baden Baden: Nomos, 2012); Timothy G. Nelson, Human Rights Law and BIT Protection: Areas of Convergence, 11 J. World Investment & Trade (2011), 27, 34–35, 46–47 (discussing the Zimbabwe cases). 39 The right to property is protected, to varying degrees, in various human rights instruments. See Universal Declaration of Human Rights, art. 17, G.A. Res. 217 (III) (A), U.N. Doc.A/777 (10 December 1948); American Convention on Human Rights, art. 21, 22 November 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123; African (Banjul) Charter on Human and Peoples’ Rights art. 14, 27 June 1981, 21 I.L.M. 58 (1982). 40 See Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, art. 1, 20 March 1952, E.T.S. No. 9. 41 For example, among more typical issues arising under the Oman-Yemen BIT, an ICSID tribunal ordered Yemen to pay $1 million in moral damages for “physical duress” of a business executive. See Desert Line Projects LLC v. Republic of Yemen, ICSID Case No. ARB/05/17, Award, ¶¶ 284–91 (6 February 2008). Now, a Turkish investor has started an arbitration seeking damages from Turkmenistan, after the UN Human Rights Committee found that Turkmenistan had imprisoned him inhumanely. See Bozbey v. Turkmenistan, Communication No. 1530/2006, U.N. Doc. CCPR/C/100/D/1530/2006, ¶¶ 5, 7.3, 9 (2010); Jarrod Hepburn and Luke Eric Peterson, After Claims of Human Rights Violation are Borne Out, Businessman Pursues Ad-Hoc Investment Treaty Arbitration against Turkmenistan, Investment Arb. Rep. (3 April 2013).


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rights and investment tribunals. Indeed, similar arguments may be advanced in support of such tribunals, so finding common ground may help both the human rights and business communities. Campbell illuminates this nexus. The Southern African Development Community (“SADC”)42 created a court with jurisdiction over “disputes between natural or legal persons and States,” regardless of the claimant’s nationality.43 The SADC empowered private persons to bring claims against member states in any case concerning “interpretation and application” of the SADC Treaty.44 The SADC Treaty specified only a few general principles and undertakings, including “human rights, democracy, and the rule of law” and a ban on racial discrimination.45 Campbell was the SADC Tribunal’s first judgment. In Campbell, the Tribunal found that it had jurisdiction, because the claim concerned “human rights” and “the rule of law.” The Tribunal rejected Zimbabwe’s argument that these principles alone could not support jurisdiction without a protocol “to give effect” to them. On the merits, the Tribunal held that access to courts and a fair hearing are “fundamental rights” and “essential elements of the rule of law,” and that Zimbabwe had deprived the white farmers of their land without opportunity for judicial review. The Tribunal also held that Zimbabwe had discriminated de facto against the farmers on the basis of race, while observing that it would not have found a better land reform program to be discriminatory. Ultimately, the Tribunal ordered Zimbabwe to pay the farmers “fair compensation” and “to take all necessary measures … to protect the possession, occupation and ownership of the [claimants’] lands.”46 Thus, leaving aside differences in process and substantive law, the human rights tribunal in Campbell played effectively the same roles as the ICSID tribunal in Funnekotter.

42 The SADC members are Angola, Botswana, D.R. Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe. The SADC has suspended Madagascar’s membership since a 2009 coup. See Stephen Kingah, The Southern African Development Community, Rep. Int’l Orgs. (2010). 43 Protocol on Tribunal in the Southern African Development Community, 7 August 2000, art. 15.1. 44 Id., art. 14(a). SADC cases may not be brought unless the claimant “has exhausted all available remedies or is unable to proceed under the domestic jurisdiction,” id., art. 15.2, but this condition was readily satisfied in Campbell where Zimbabwe law had ousted the domestic courts of jurisdiction over the white farmers’ claims. Campbell (2008), supra note 34, pp. 21–23. 45 Treaty of the Southern African Development Community, 17 August 1992, arts.4(c), 6.2. 46 For further discussion of Campbell, see, e.g., Erika de Wet, The Rise and Fall of the Tribunal of the Southern African Development Community: Implications for Dispute Settlement in Southern Africa, 28 ICSID Rev. 45 (2013), 1.


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The political reactions to Campbell are also telling. Mike Campbell, his wife Angela, and his son-in-law Ben Freeth were beaten severely.47 Robert Mugabe expressly refused to honor the SADC judgment.48 When the Tribunal referred the case to the SADC Summit to take “appropriate action” to enforce the judgment,49 the Summit instead effectively dissolved the Tribunal and suspended its work pending a treaty amendment to abolish private access.50 The Summit moved to end private access to the Tribunal, apparently at Zimbabwe’s urging, in the face of a report commissioned by the Summit itself that defended Campbell, rejected several challenges Zimbabwe made to the Tribunal’s legitimacy, expressly declined to recommend ending private access lest individuals “be left without effective protection” where domestic remedies are inadequate and recommended reforms to strengthen the Tribunal.51 Among those rising to defend the Tribunal was Archbishop Desmond Tutu, the human rights icon. Archbishop Tutu’s comments warrant quotation at length, as they invoke and intertwine human rights and investment arguments: [S]outhern Africa was building a house of justice, a place where … victims of injustice could turn with confidence. That house is now in grave danger… [I]ndividual access to the SADC court constitutes a key legal instrument that has brought hope to victims of the abuse of power in SADC countries… The future of the SADC Tribunal hangs in the balance. Without it, the region will lose a vital ally of its citizens, its investors and its future.

47 Video of the three victims after they were beaten is shown in a documentary, Mugabe and the White African (2009). 48 See, e.g., Campbell v. Zimbabwe, SADC (T) Case No. 03/2009, Ruling (5 June 2009) (finding Zimbabwe had not complied with the Campbell judgment, where inter alia “President Robert Mugabe … qualified the Tribunal’s decision as ‘nonsense’ and ‘of no consequence’”). 49 Id., acting under Protocol (2000), supra note 43, art. 32.5. 50 After placing a moratorium on the Tribunal’s work, the SADC decided not to reappoint or replace Tribunal judges whose terms expired and then “resolved that a new Protocol on the Tribunal should be negotiated and that its mandate should be confined to … disputes between Member States.” Communiqué, Extraordinary Summit Heads of State and Government of the Southern Africa Development Community, Windhoek, Namibia, ¶¶ 6–8 (20 May 2011); Final Communiqué, 32nd Summit of SADC Heads of State and Government, Maputo, Mozambique, ¶ 24 (18 August 2012). For criticism of the Summit’s decision, see, e.g., de Wet (2013), supra note 46, pp. 14, 18–19; for a “realist” appraisal of the Summit’s decision, see Laurie Nathan, The Disbanding of the SADC Tribunal: A Cautionary Tale, 35 Hum. Rts. Q. (2013), 870. 51 See Frederick Cowell, The Death of the Southern African Development Community Tribunal’s Human Rights Jurisdiction, 13 Human Rts. L. Rev. (2013), 153, 161–164; Lorand Bartels, Review of the Role, Responsibilities and Terms of Reference of the SADC Tribunal (2011).


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As an African, I am sad that we should give this image of ourselves that we are basically not in favour of the rule of law. It is up to all of us to ensure that SADC not only reinstates the Tribunal but also strengthens it. We need the support of SADC citizens, civil society and the wider community to save the SADC Tribunal so that the rule of law, development and human rights are protected throughout our region.52

Likewise, two southern African NGOs and the International Commission of Jurists advocated for the Tribunal in terms that moved beyond standard human rights arguments into the realm of investment law. For example: [E]conomic growth and development will be severely set back should investors and businesses be denied the security of having disputes legally determined by a regional tribunal in the event the domestic setting offers no relief.

Also: [I]f individual access is denied, those investing or doing business in Southern Africa will have no guarantee that, in the event of dispute, they will have access to regional remedy. Without the confidence that they may approach the SADC Tribunal for definitive determination of their entitlements and protection of their property, those considering investing in Southern Africa confront only substantial disincentive.53

SADC should restore the Tribunal with its right of private access intact. This would hold states to their stated principles and help move reality toward those principles.54 It would promote the rule of law, sorely needed in Zimbabwe,55 for the benefit of both Zimbabwe’s citizens and international investors. It would also align SADC with other regional communities: Both the Economic Community of West African States (ECOWAS) and the East Africa Community secure the rights of individual access to their respective courts, recognising that such access is critical to encouraging economic growth. All three economic communities are committed to securing an economic community that ultimately encompasses all of Africa. But SADC will set back integration efforts by offering its citizens, residents and

52 Desmond Tutu, Too Late to Save the SADC Tribunal, available at: , accessed 13 August 2012. 53 International Commission of Jurists, et al., Submission regarding Amendments to the SADC Tribunal Protocol (2012), pp. 16, 20 [hereinafter NGO Submission]. 54 Cf. Owen M. Fiss, Against Settlement, 93 Yale L.J. (1984), 1073, 1089 (“Civil litigation is an institutional arrangement for using state power to bring a recalcitrant reality closer to our chosen ideals.”). 55 According to one study, Zimbabwe ranks 96th out of 97 countries in fundamental rights and 90th in civil justice. See World Justice Project, Rule of Law Index, 2012–13, p. 156.


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those who do business within its territory less protection than they can command in other parts of the continent.56

In a striking twist, following Mike Campbell’s death, his son-in-law Ben Freeth and a farmer who had prevailed in another case at the SADC Tribunal have now alleged that SADC member states are violating human rights law by undermining the Tribunal.57 They seek an order requiring the SADC states to restore the Tribunal’s “jurisdiction and operation” and “to give effect to [its] rulings.” They brought this case to the African Commission on Human and Peoples’ Rights, under its rules allowing consideration of individual “communications” that “relat[e] to human or peoples’ rights.”58 Africa is not traveling alone down this transnational road.59 Since 1998, the Council of Europe has allowed individuals to bring cases directly against states before the European Court of Human Rights (“ECHR”).60 Doing so caused a fiftyfold jump in activity in Strasbourg, from about 20 cases per year in the system’s first 40 years to about 1,000 cases per year since 1998.61 The ECHR has heard many land disputes – notably including a case affecting the rights of about 80,000 Polish citizens.62 In the Americas, private persons can petition the InterAmerican Commission on Human Rights, but only the Commission (or a state) can initiate a case at the Inter-American Court of Human Rights.63 Again, this

56 NGO Submission (2012), supra note 53, p. 20. 57 Tembani v. Angola, ACHPR Communication No. 409/12. The text of the communication is available at . At this writing, Tembani’s communication has been deemed “admissible” and the case is continuing. See Richard Lee, African Commission to Hear SADC Tribunal Case (22 November 2012), available at: , accessed 18 June 2013. 58 African (Banjul) Charter on Human and Peoples’ Rights arts. 55–56, 27 June 1981, 21 I.L.M. 58 (1982). 59 See generally NGO Submission (2012), supra note 53 (reviewing the individual access provisions of various regional and subregional tribunals). 60 See Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established Thereby art. 34, 11 May 1994, E.T.S. No. 155. 61 European Court of Human Rights, Overview 1959–2011 (2012), p. 4. Another important factor was the expansion of the Council of Europe after the Cold War: Russia alone accounted for 22% of cases pending on 31 December 2012, while seven of the top ten “high case-count states” had been Communist. European Court of Human Rights, Analysis of Statistics 2012 (2013), p. 8. 62 See Note, Broniowski v. Poland: A Recipe for Increased Legitimacy of the European Court of Human Rights as a Supranational Constitutional Court, 39 U. Conn. L. Rev. (2006), 759. 63 See American Convention on Human Rights, arts. 41(f), 44, 61.1, 22 November 1969, O.A.S.T. S. No. 36, 1144 U.N.T.S. 123. The Commission’s role severely limits the number of cases brought to the Court. In 2012, the Commission received 1936 petitions and filed only twelve cases with the Court. Inter-American Commission on Human Rights, 2012 Annual Report 53, 61 (2013).


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Court hears land disputes – including several significant cases addressing the land rights of indigenous peoples.64 The Inter-American effort to secure land rights for indigenous peoples holds real promise for Africa. It also responds to another criticism sometimes heard of investor-State arbitration, that its availability tilts the political scales in favor of foreign investors at the expense of domestic interests.65 Making international adjudication available for domestic and foreign claimants alike evens the scales. If a state could be brought to an effective, neutral international tribunal for entering a lease that infringed the land rights of citizens, that should encourage states to give more respect to those land rights when deciding whether to enter the lease and, if so, on what terms. Of course, there will be practical difficulties in enforcing the land rights of Africans. According to Wily, “[l]ess than 10 percent” of the land in Sub-Saharan Africa is privately titled.”66 The prospect of effective international adjudication capable of enforcing land rights makes it all the more important to find ways to formalize traditional land rights.67 *** International adjudication of land disputes is not, as some might have it, always and necessarily at odds with human values. To the contrary, such adjudication may contribute to such human values as development, human rights, and the rule of law. States should build the legal infrastructure needed to make such adjudication available to landowners domestic and foreign. Unfortunately, the benefits are not inevitable either. Rather, they require attention to the details – to sound contracts, laws, policies, institutions, and governance. Accordingly, to say the least, states contemplating leases of land subject to traditional rights

64 See generally Thomas M. Antkowiak, Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court, 35 U. Penn. J. Int’l L. (forthcoming 2013), p. 113; Mauricio Iván Del Toro Huerta, The Contributions of the Jurisprudence of the Inter-American Court of Human Rights to the Configuration of Collective Property Rights of Indigenous Peoples, available at: , accessed 18 June 2013. 65 See, e.g., Anderson et al. (2009), supra note 30, p. 3 (criticizing “a system that currently elevates the interests of foreign investors over other groups – including labor, environmental and human rights organizations – which do not enjoy comparable private rights of action to enforce international legal obligations”). 66 Wily, supra note 1, p. 6. 67 See id., pp. 22–24 (discussing options for formalizing land rights). For further information about the importance of securing land rights and about how to do so, see the website of Landesa, www.landesa.org, an NGO that claims to have helped secure land rights for 400 million people in 45 countries.


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should ensure that these rights are recognized and respected and that the leases protect these rights as well as the public interest. Acknowledgment: I thank the organizers of the 2013 Law and Development Conference, particularly Yong-Shik Lee and Andreas Neef, for inviting me to participate, as well as Tom Antkowiak and David Faber for their helpful comments. All mistakes are my own.



Article Uche Ewelukwa Ofodile*

Managing Foreign Investment in Agricultural Land in Africa: The Role of Bilateral Investment Treaties and International Investment Contracts Abstract: This paper seeks answers to three questions. What are the trends in terms of the role of bilateral investment treaties (BITs) and land contracts in addressing complex environmental, social and governance issues implicated in foreign direct investment in agricultural land (agro-FDI)? Are countries in sub-Saharan Africa (SSA) effectively using these two policy instruments to maximize the benefits of agro-FDI and to minimize associated risks and dangers? Do countries in SSA appreciate and are they effectively managing the complex interactions between international investment law, as encapsulated in BITs, and other regimes of international law, particularly the international human rights regime? Keywords: bilateral investment treaties, agribusiness, agricultural investment in Africa DOI 10.1515/ldr-2014-0010

1 Introduction Foreign acquisition of land for agricultural use is on the rise in sub-Saharan Africa (SSA) and is a growing source of tension and conflict in many countries.1 1 See generally Grain, Seized! The 2008 Land Grab for Food and Financial Security (Grain, October 2008), available at: ; Margaret C. Lee, The 21st Century Scramble for Africa, 24 Journal of Contemporary African Studies, no. 3 (2006), pp. 303–330; Joachim Von Braun and Ruth Meinzen-Dick, Int’l Food Policy Research Inst. (IFPRI), Policy Brief 13, “Land Grabbing” by *Corresponding author: Uche Ewelukwa Ofodile, University of Arkansas School of Law, Fayetteville, AR, USA, E-mail: [email protected]


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Indeed, no continent has been spared in this new rush for farmland.2 The class of investors is varied and includes foreign governments, sovereign wealth funds, agribusiness and industry, international private equity groups, and international pension funds. Institutional investors are showing growing interest in crop land and agricultural infrastructure as an alternative asset class.3 Predictions about the future performance of farmland and forestry appear to be fueling the frenzy. Jeremy Grantham, Chief Investment Strategist for Boston-based Grantham, Mayo, Van Otterloo & Co., predicts that farmland and forestry will outperform the average of all global assets long term.4 One study projects that given the expected need for additional arable land to be brought into production on a global basis, the amount of capital that could enter the farmland and farm infrastructure sector could substantially exceed USD 150 billion.5 However, what some see as filling large investment gaps in Africa, others dismiss as “land rush,” “land grab,” and even “new colonialism.”6 On the one hand, foreign direct investment in agricultural land (agro-FDI) has the potential to offer significant macro-level benefits to countries in Africa and may be the key to revitalizing the agricultural sector in the continent.7 On the other hand, foreign acquisition of farmland in Africa and related push to boost agribusiness in the continent could seriously threaten and undermine human rights and environment protection efforts in the continent.8 The question is not simply Foreign Investors in Developing Countries: Risks and Opportunities (April 2009), available at: ; Lorenzo Cotula, Sonja Vermeulen, Rebeca Leonard and James Keeley, Land Grab or Development Opportunity? Agricultural Investment & International Land Deals in Africa (Rome: FAO/IIED/IFAD, 2009); Klaus Deininger et al., Rising Global Interest in Farmland: Can It Yield Sustainable and Equitable Benefits? (Washington, DC: The World Bank, 2010). 2 HighQuest Partners, United States (2010), Private Financial Sector Investment in Farmland and Agricultural Infrastructure, OECD Food, Agriculture and Fisheries Papers, No. 33, OECD Publishing, [hereinafter HIGHQUEST]; A. Malone, 18 July 2008, p. 10. 3 BBC News, Hedge Funds “Grabbing Land” in Africa, 8 June 2011, available at: . 4 Maria Kolesnikova, “Grantham Says Farmland Will Outperform All Global Assets”, Bloomberg, 11 August 2011, available at: . 5 HighQuest (2010), supra note 2, para. 35. 6 Id.; Andrew Malone, “How China’s Taking Over Africa, and Why the West Should Be Very Worried”, Mail Online.com, 8 July 2008, available at: 7 S. Haralambous, H. Liversage and M. Romano, The Growing Demand for Land: Risks and Opportunities for Smallholder Farmers (IFAD’s Governing Council, 18 February 2009). 8 Id.


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whether countries in SSA should reject or support agro-FDI. The more critical and more complex question is whether SSA countries are positioned to seize the opportunities that FDI in land offers and to manage potential risks, dangers, and challenges. Several questions thus arise. Do bilateral investment treaties (BITs), and international investment law regime more generally, undermine or complement international human rights law as far as addressing the concerns associated with FDI in land? Are countries in Africa taking steps to ensure that their national interests are safeguarded and that human rights and environmental concerns are addressed in the land investment agreements that they are concluding. What other legal options for maximizing opportunities and mitigating risks associated with FDI in land are available to countries in Africa and are countries utilizing these options? With a specific focus on Ethiopia, this paper reviews the interaction between agro-FDI and BITs, as well as the interaction between agro-FDI and land contracts. The paper argues that most BITs that countries in Africa have concluded do not address the social and environmental issues that are implicated in agro-FDI and have the potential to constrain the ability of governments to regulate agro-FDI in the public interest. Although attempts are increasingly made to introduce human rights and sustainable development principles into BITs, progress has been limited. Few countries in SSA have taken necessary steps to review, and possibly revise, their BITs.9 Furthermore, the land contracts examined suggests that countries in SSA are not presently using the contracts to distribute the risks, costs, and benefits associated with agro-FDI or to limit exposure to liability under the BITs that they have concluded. This paper highlights the human rights and environmental challenges associated with agro-FDI in countries with weak regulatory framework and very fragile institutions. The paper raises a number of questions and calls for further studies into the trends in agro-FDI in Africa and the policy, legal and regulatory framework within which these are occurring. The paper calls for a closer attention on BITs that States in Africa concluded in the past and are now concluding and to domestic and regional initiatives in the continent to move toward development-oriented investment policies and BITs.

9 In 2009, South Africa initiated a comprehensive review of its BIT program and subsequently announced plans to allow some existing BITs to expire and stop negotiating BITs in the future. True to plans, on 23 June 2013, South Africa served a notice of termination with respect to its BIT with Spain; this BIT terminated on 23 December 2013 at the expiration of the 6 months’ notice called for in the agreement. See Department of Trade and Industry, South Africa, Bilateral Investment Treaty Policy Framework Review: Government Position Paper (2009).


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The paper also draws attention to the need for further studies on a broad range of issues. There is much that is still not known about FDI in farmland in Africa and the contracts that enable these investments. For example, it is not clear the extent to which factors such as resource constraint, lack of legal and technical capacity, and official corruption really influence the outcome of negotiation of land lease agreements? The full and precise role of African Governments in enabling and facilitating the sale and/or lease of farmlands in the continent is also not known? The capacity of host governments and local communities to enforce contracts and engage meaningfully with the new crop of agricultural investors deserves closer analysis. Much research is also needed to understand the implications of large-scale agricultural investment on smallholders in Africa.

2 Foreign investment and land sale/lease contracts in Africa: a preliminary overview and critique Land acquisition by corporate investors can be a force for good or evil depending on how the policy, legal, and institutional framework within which such investments occur. FDI in land can support and strengthen efforts to revitalize the agricultural sector in Africa, boost agricultural exports, address food insecurity concerns, and link smallholders in the continent to the global value chain. On the other hand, FDI in land has the potential to negatively impact the economic and social rights as well as the civil and political rights of individuals and groups in Africa.10 Risks potentially associated with large-scale agricultural investment in Africa include food insecurity, environmental destruction and/or degradation, forced evictions of existing users of land, new conflicts over land rights and the intensification of prior conflicts, forced labor, child labor, and illegal expropriation of natural resources.11 Large-scale acquisition of land also has the potential to affect the availability and accessibility of water, grazing 10 Leon Kaye, “The Global Land Grab Is the Next Human Rights Challenge for Business”, The Guardian, 11 September 2012, available at: (noting that “The opaque conditions under which these available or empty lands abruptly switched ownership displaced some of the world’s poorest families, destroyed lives, and disrupted many communities’ food security.”). 11 United Nations Conference on Trade and Development, World Investment Report 2009: Transnational Corporations, Agricultural Production and Development, at 94 (July 2009), available at: .



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sites, and fruit trees that local communities including pastoralists and indigenous groups typically rely on for food. In a 2010 report, the Center for Human Rights and Global Justice at New York University concluded: Large-scale land investments can negatively affect many human rights, including, but not limited to: the right to water; the right to participation; the rights of indigenous persons; the right to adequate housing, including the right to not be forcibly evicted from one’s home; the right to an adequate standard of living; the right to non-discrimination and equality; the right to self-determination; the right to development; and the right to adequate remedy.12

The United Nations (UN) Special Rapporteur on the Right to Food and other UN bodies have also warned about the potentially negative impact on human rights of large-scale investment in agricultural land in developing countries.13 The question taken up in this section is whether and to what extent countries in Africa are using well-developed contracts to mitigate the risks associated with agro-FDI. Land contracts are important because they are one tool that development-conscious policy makers can use to address weaknesses in domestic law, maximize the benefits associated with agro-FDI, and minimize associated risks.14 Compared to BITs which are usually negotiated on the basis of pre-existing model texts and are generally one-sided in terms of protecting foreign investment and foreign investors, contracts provide an opportunity for countries to ensure a balance of rights and obligations as between host governments and foreign investors. The questions to ask are these: Are the land investment contracts that governments in Africa are concluding drafted with a view to furthering sustainable development goals in these countries? Are contracts drafted to proactively address the human rights and environmental concerns associated with agro-FDI? The conclusion reached in this section is that based on the contracts examined, governments in Africa are not presently using land investment contracts to distribute the risks, costs, and benefits associated with agro-FDI. Most of the promised outcome of agro-FDI (e.g. job creation, technology transfer, capital contribution, rural development, linkages with domestic industries, 12 Center for Human Rights and Global Justice, Foreign Land Deals and Human Rights: Case Studies on Agricultural and Biofuel Investment (New York: NYU School of Law, 2010) [hereinafter Foreign Land Deals and Human Rights]. 13 Food and Agricultural Organization (FAO), The State of Food and Agriculture 2012 67–73 (2012). 14 Lorenzo Cotula and Sonja Vermeulen, “Land Grabs” in Africa: Can the Deals Work for Development? IIED Briefing (September 2009), available at: .


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infrastructure development, export growth, etc.) are not mentioned in the contracts at all. Moreover, broader environmental and social issues and concerns are rarely mentioned and, when mentioned, are only discussed casually. The focus of this analysis is primarily on Ethiopia. In total ten land lease/ sale agreements are examined in this article. The agreements were chosen because they are publicly available and in English. Obviously more contracts involving more countries will need to be examined before broader conclusions can be reached. The ten contracts are not necessarily representative of the land agreements that foreign investors are concluding with other governments in Africa or the contracts that they are concluding with other land owners in Africa. The ten agreements examined are: (i) the agreement between the Ministry of Agriculture of Ethiopia (Ministry) and Karuturi Agro Products Plc., an Indian company (Karuturi Contract)15; (ii) the agreement between the Ministry and Saudi Star Agricultural Development Plc. (Saudi Star Contract)16; (iii) the agreement between the Ministry and Hunan Dafengyuan Agriculture Co., Ltd, a Chinese company (Hunan Contract)17; (iv) the agreement between S&P Energy Solutions Plc. and the Ministry of Agriculture and Rural Development of FDRE (S&P Energy Contract)18; (v) the contract between Whitefield Cotton Farm Plc. and the Ministry of Agriculture and Rural Development of FDRE (Whitefield Contract)19; (vi) the contract between BHO Bio Products Plc. and the Ministry

15 Land Rent Contractual Agreement Made Between Ministry of Agriculture and Rural Development and Karuturi Agro Products Plc. [hereinafter Karuturi Contract], executed on 25th October 2010, available at: . 16 Land Rent Contractual Agreement Made Between Ministry of Agriculture and Rural Development and Saudi Star Agricultural Development Plc. [hereinafter Saudi Star], executed on October 25, 2010, available at: http://www.oaklandinstitute.org/sites/oaklandinstitute.org/files/ SaudiStar-Agreement.pdf 17 Land Rent Contractual Agreement Made Between Ministry of Agriculture and Rural Development and Hunan Dafengyuan Agricultural Co., Ltd [hereinafter Hunan Contract], executed on November 25, 2011, available at: 18 Land Rent Contractual Agreement Made Between Ministry of Agriculture And Rural Development And S&P Energy Solutions Plc. [hereinafter S&P Contract], executed March 1, 2010, Art. 2.1, available at: . 19 Land Rent Contractual Agreement Made Between Ministry of Agriculture And Rural Development And Whitefield Cotton Farm Plc. [hereinafter Whitefield Contract], executed January 8, 2010, Art. 1.1., available at: .



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of Agriculture and Rural Development of FDRE (BHO Bio Contract)20; (vii) the contract between Sannati Agro Farm Enterprises Pvt. Ltd (Ethiopia Branch) and the Ministry of Agriculture and Rural Development of FDRE (Sannati Agro Contract)21; (viii) the contract between Ruchi Agri Plc. and the Ministry of Agriculture and Rural Development of FDRE (Ruchi Contract)22; (ix) the contract between CLC Industries Plc. and the Ministry of Agriculture and Rural Development of FDRE (CLC Contract)23; and (x) the contract Between Ministry of Agriculture and Rural Development and Verdanta Harvest Plc. (Verdanta Contract).24 The focus in this section is not on the contracting process although this deserves urgent attention. Rather the focus of this section is specifically on the legal implications of the contracts as drafted.

2.1 Overview of the contracts The terms of the contracts examined are fairly similar. The lessees are incorporated under the laws of Ethiopia as private limited companies and operate as subsidiaries of foreign corporations.25 Most of the contracts are with the Ministry of

20 Land Rent Contractual Agreement Made Between Ministry of Agriculture and Rural Development and BHO BIO Products Private Limited Company, executed on November 25, 2011, available at . 21 Land Rent Contractual Agreement Made Between Ministry of Agriculture and Rural Development and Sannati Agro Farm Enterprises Pvt. Ltd (Ethiopia Branch), executed October 1, 2010, available at: . 22 Land Rent Contractual Agreement Made Between Ministry of Agriculture and Rural Development and Ruchi Agri Plc. [hereinafter Ruchi Contract], executed on April 5, 2010, available at: . 23 Land Rent Contractual Agreement Made Between Ministry of Agriculture and Rural Development and CLC Industries Plc. [hereinafter CLC Contract], executed on December 25, 2009, available at: . 24 Land Rent Contractual Agreement Made Between Ministry of Agriculture and Rural Development and Verdanta Harvest Plc. [hereinafter Verdanta Contract], executed on April 20, 2010, available at . 25 For example, Karuturi is a subsidiary of Bangalore-based food company, Karuturi Global Ltd, a company incorporated in India in 1994. See Karuturi, Overview, available at: . The Hunan Dafengyuan Agriculture Co., Ltd is a private limited company incorporated in China. Saudi Star Agricultural Development Plc. is a private limited liability company incorporated under Ethiopian law and owned by Saudi billionaire Sheikh Mohammed al-Amoudi. According to Forbes, Sheikh Al Amoudi “is the biggest individual investor in Ethiopia with a portfolio of interests from hotels and gold mines to agriculture and cement” and “is also the country’s most prolific philanthropist.” See Tatiana Serafin, “Sheikh Mohammed Al Amoudi on Philanthropy”, Forbes, 5 June 2013.


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Agriculture and Rural Development in Ethiopia. The contracts are fairly short with articles ranging from 10 to 20.26 The contracts envisage the cultivation of different forms of agricultural products.27 The contracts are for plots of land measuring between 10,000 and 100,000.28 The leases are for periods ranging from 20 years to 100 years.29 However, most of the contracts stipulate that the leases can be renewed for additional years mutually agreed between the parties.30 The annual lease rate per hectare appears to be quite low generally ranging from Birr 20 (USD 1.16) to Birr 158 ($9.42) per hectare annually.31 The agreements generally call for immediate but gradual development of the leased land.32 Some of the contracts 26 For example, the Karuturi Contract has 20 articles in total, while the Hunan Contract has 19 articles in total. 27 The Karuturi Contract is for development of palm, cereals, and pulses farm. The Hunan Contract is “a long term land lease of rural land for Sugar Cane farming and related activities.” See Hunan Contract, Art. 1.1, available at: . The BHO BIO Products Co. Contract is a lease agreement “to establish a long term land lease of rural land for farming of cereal crops, pulses and edible oil crops and related activities.” Under the Sannati Agro Farm Contract, Sannati Agro Farm Enterprises agreed to grow rice and rotational pulse and cereal crops. The Ruchi Agri contract is a land lease agreement for soybean farm development. Under the agreement, lessee is expected to grow soya beans and other crops and also engage in related activities. 28 The Karuturi Contract is for land measuring 100,000 hectares. On the other hand, the Whitefield Cotton Farm contract is for 10,000 hectares, as is the Sannati Agro Farm Contract. BHO Bio Products Co. contract is for land measuring 27,000 hectares that is located in Gambella Regional State. 29 The Karuturi Contract is a lease for 50 years. The Hunan lease agreement “is made for period of 40 years but can be renewed for another additional years mutually agreed between the parties.” The Saudi Star Contract is a 50-year lease of 10,000 hectares (24,711 acres) in Ethiopia’s western Gambella region. On the other hand the Whitefield Cotton Farm contract is a 25-year lease. The BHO Bio Products Co. contract is also for a period of 25 years “but can be renewed for additional years mutually agreed between the parties.” 30 For example, the Verdanta Contract is a land lease agreement is for 50 years “but can be renewed for another additional years mutually agreed between the parties.” 31 Under the Karuturi Contract, the annual lease rate per hectare is Birr 20 (USD 1.16) and the total annual payment comes to only 2,000,000 Birr (USD 116,488.88). Under the Hunan agreement, the annual lease rate per hectare of land is fixed at Birr 158 (USD 9.17) with a total annual amount of Birr 3,900,000 (USD 226,354.73) and a total amount payable over the duration of the contract period standing of Birr 158,000,000 (USD 9,170,268.44). Under the Sannati Agro Farm Contract, the lease rate per hectare is Birr 158 (USD 8.3307) a year. The total rate is Birr 1,580,000 (USD 83306.970483306.9704) a year. The overall contract total is Birr 39,500,000 (USD 2082674.2592). 32 Under the Whitefield Cotton Farm contract, Whitfield is expected to develop one fourth of the land within the first year and the entire plot in 4 years. See Whitefield Cotton Farm contract, Article 4.4. The Ruchi Agri contract requires Ruchi Agri Plc. to develop 10% of the land within the first year and the entire plot within 4 years. See Ruchi Agri contract, Article 4.4. The CLC Industries contract requires the lessee to develop one tenth of the land within 1 year and the entire plot within 7 years.



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stipulate that the lessor “reserves the right to revise the lease payment rate as the need may arise.”33 While some of the contracts require lease payment to commence immediately upon the execution of the lease contract, others afford lessee considerable flexibility.34 The contracts stipulate the governing law for operations to be the laws of Ethiopia.35 In the contracts, the lessor warrants that “it has full ownership and property in the leased area”36 and “shall protect the right of the lessee to the peaceful possession, use and quiet enjoyment thereof.”

2.2 Land investment agreements and sustainable development in Africa: a critique On issues such as food security, water rights, environmental protection and conservation, job creation, and social impact of agro-FDI, the contracts do a poor job of effectively distribute the risks, costs, and benefits associated with agro-FDI. Furthermore, most of the benefits typically associated with agro-FDI (e.g. job creation, technology transfer, capital contribution, rural development, linkages with domestic industries, infrastructure development, and increased export growth) are not mentioned in the contracts at all. Although in the contract there is an effort by the Ethiopian Government to preserve domestic regulatory space these efforts are undermined by weak or ambiguous contractual terms. Key contractual terms are not defined, and overall, very little attempt is made to clarify vague contractual provisions.

2.2.1 Food security Large-scale acquisition of land by foreign investors can negatively impact food availability and accessibility.37 The Bali Declaration on Human Rights and

33 See Saudi Star Agreement, Article 2.2.4. 34 The Saudi Star Agreement and the Karuturi Agreement require lease payment to commence upon the execution of the said agreements. See The Saudi Star Agreement, Article 2.2.2. See also The Karuturi Agreement, Article 2.2.2. On the other hand, the Verdanta Contract provides for “a five years grace period for the land rent.” The rent for the 5 years is to be prorated over the remaining years of the lease. See The Verdanta Contract, Article 2.2.1. 35 See the Whitefield Cotton Farm Contract, Article 12; The BHO BIO Product Contract, Article 12; The Saudi Star Agreement, Article 12. 36 See the Whitefield Cotton Farm Contract, Article 14; The BHO BIO Product Contract, Article 14; The Saudi Star Agreement, Article 14. 37 Kim Lewis, Land Grab in Africa Threatens Food Security, VOA (5 October 2012), available at: .


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Agribusiness in Southeast Asia (2011) asserts that States “need to accept that the right to food may be violated when people are denied access to land, fishing or hunting grounds, or are deprived of access to adequate and culturally acceptable food or by the contamination of food and water sources.”38 Food security issues arise when land is acquired to grow food exclusively for export markets and domestic food supply is thereby compromised. Food security concerns also arise when large-scale land acquisition results in the forced eviction of prior users of land or has a negative impact on the livelihood and productivity of smallholders. The UN Special Rapporteur on the Right to Food urges that the need to preserve food security within the host country “should be taken into account proactively, in the negotiation of the investment agreements concerned.” Ideally, “these agreements should include a clause providing that a certain minimum percentage of the crops produced shall be sold on local markets, and that this percentage may increase, in proportions to be agreed in advance, if the prices of food commodities on international markets reach certain levels.”39 On the positive side, the contracts examined do not stipulate that food grown by the investors are only for the export market or prohibit investors from selling the products domestically. The contracts also have clauses designed to avoid speculative investment and ensure that investors cultivate the land in a timely manner. The Hunan Contract provides explicitly that the Lessee “is expected to start to develop the land within six months from the date of execution of the land lease Agreement.”40 Under the Hunan Contract, “Unless 75% of the project land is developed, the lessee has no right to transfer the land or properties developed on the land in favor of any other company or individual.”41 Article 4 of the Karuturi Contract stipulates that the lessee “shall in no way make any unauthorized use of the leased land beyond the predetermined purpose and objective or plan … without the express consent of the lessor in writing.”

38 Bali Declaration on Human Rights and Agribusiness in Southeast Asia 2011. Adopted at the conclusion of the international meeting of South East Asian Human Rights Institutions on “Human Rights and Business: Plural Legal Approaches to Conflict Resolution, Institutional Strengthening and Legal Reform” hosted by the Indonesian National Human Rights Commission (KOMNASHAM) in Bali, Indonesia, from 28th November to 1st December 2011. 39 Special Rapporteur on the right to food, Large-scale land acquisitions and leases: A set of core principles and measures to address the human rights challenge, Office of the High Comm’r for Human Rights, (June 11, 2009) (hereinafter Special Rapporteur). 40 Hunan Contract at Art. 3. Emphasis added. 41 Id.



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On the negative side, although the contracts do not contain “export only” provisions, they do not require investors to sell any proportion of their harvest in the domestic market. Essentially, nothing in the contracts precludes investors from selling their products in more lucrative overseas markets. The termination clauses in the contracts can also negatively affect domestic food supply by making it easy for investors to abandon their projects. Under the Karuturi Contract, the lessee has the right to terminate the agreements “subject to at least six months prior written notice.”42 Under the Hunan and Saudi Star agreements, the lessee can also terminate the contract “subject to at least six months prior written notice upon justified good cause.”43

2.2.2 Water rights The water dimension of large-scale land acquisition has been largely ignored in recent debates about the social and environmental impact of FDI in land. This is unfortunate. Because frequently water is acquired together with land, largescale acquisition of agricultural land can affect domestic water supply, trigger major conflicts over water and compromise other development projects that a State may be pursing. As a report from the Rights and Resources Initiative note “[m]any agricultural landgrabs could equally be called watergrabs, given that water is the limiting factor for about a quarter of the world’s agricultural area,” and investors “target land that is fertile, accessible, and can be irrigated.”44 The contracts examined do not address water rights or water use. It would appear that water is often neglected in deals involving large-scale acquisition of land in Africa. The contracts do not address water rights and water issues directly or coherently and do not preserve prior user rights over local water supply systems. On the contrary, a provision common in the contracts examined confers on the lessee, the right to build infrastructures such as dams. While some contracts require that lessees obtain necessary permits prior to building infrastructures such as dams, others do not mention the need to obtain permits. Article 3.2 of the Karuturi Contract confers on the lessee the right to: Build infrastructure such as dams, water boreholes, powerhouses, irrigation system, roads, bridges, … fuel/power supply stations/out lets … at the discretion of the Lessee upon 42 Karuturi Contract at Art. 3.7; Saudi Star, Art. 3.7. 43 Hunan Contract at Art. 3.6; Saudi Star Contract at Art. 3.6 (emphasis added). 44 Michael Richards, Social and Environmental Impacts of Agricultural Large-Scale Land Acquisitions in Africa – With a Focus on West and Central Africa (Washington, DC: Rights and Resources Initiative, 2013).


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consultation and submission of permit request with concerned offices subject to the type and size of the investment project whenever it deems so appropriate.45

There are many problems associated with granting agricultural investors broad infrastructure development rights. Expansive rights to construct dams, water boreholes, and irrigation systems can have serious impact on the environment and on the right of local communities including the right of pastoralists and indigenous peoples and can trigger conflict between foreign investors and local dwellers. The relationship between FDI in land in Africa, water rights, and biodiversity deserves closer attention particularly because many countries in the region lack adequate laws on water rights and water use.

2.2.3 Environmental conservation Large-scale land acquisition can impact the environment in so many ways including through deforestation, loss of biodiversity, carbon emissions, soil erosion, and threat to high conservation value forests. Do the land agreements examined contain provisions that address the possible negative impact of agricultural investment on the environment? Do they call for sustainable forest management? Although environmental issues are addressed, they are not addressed in a comprehensive and holistic fashion. On the positive side, most of the contracts examined impose on the lessee the obligation to conduct an environmental impact assessment and to conserve the environment. For example, Article 4.1(d) of the Karuturi Contract stipulates that the lessee shall bear the obligation to provide good care and conservation of the leased land and natural resources thereon, with particular obligation to: “[c]onserve tree plantations that have not been cleared for earth works,” “[a]pply appropriate working methods to prevent soil erosion in sloping areas,” “[o]bserve and implement the entire provision of legislations providing for natural resource conservation,” and “conduct environmental impact assessment and deliver the report within three months of this agreement.”46 Article 4 of the S&P Energy Contract requires S&P to conserve tree plantations unless otherwise indicated, prevent soil erosion, conserve natural resources, conduct an environmental impact assessment, and remove assets installed on the land upon expiration or termination of the contract. The Hunan Contract requires the lessee, upon entering the lease

45 S&P Contract at Art. 3.2; Whitefield Contract at Art. 3.2. Emphasis added. 46 See also Hunan Contract at Art. 4.



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contract, to “submit an advance action plan as regards the use of the leased rural land…” to the Ministry.47 On the negative side, the contracts do not address the environmental concerns associated with large-scale land acquisition in a coherent or comprehensive manner. Concerns such as deforestation, loss of biodiversity, and carbon emissions are not addressed specifically and directly. The obligations on lessees are somewhat vague and hard to monitor. The contracts merely require lessee to submit activity reports “upon request” and do not provide for effective, independent, and participatory ex post impact assessment.48 Finally, there is no requirement that the reports of environmental impact assessments be made available to local stakeholders.

2.2.4 Employment creation Large-scale land acquisition for agricultural purposes has the potential to boost employment in a host country thus creating much-needed jobs for rural dwellers. Instead of boosting employment, large-scale land acquisitions can undermine the ability of smallholders to practice their livelihood. Large-scale land acquisition can also lead to unemployment through displacement, forced evictions, and failed resettlement efforts. However, critics charge that unless land deals are negotiated with employment creation in mind, there is no guarantee that jobs will actually be created or that the jobs, if created, will be anything other than low-paying jobs. Much depends on the farming system that an investor chooses (whether labor intensive or highly mechanized), the management system such an investor puts in place and the willingness of a government to impose targeted local content requirements on investors. The UN Special Rapporteur on the Right to Food has called that “investors should be encouraged to establish and promote farming systems that are labour intensive rather than focused on achieving the highest productivity per hectare.” The contracts examined in this paper were clearly not negotiated with job creation in mind. The contracts do not require lessees to use and prioritize the local workforce and generally place no limit on the use of “outside” labor.49 The 47 Hunan Contract at Art. 4.12. 48 Instead of assessment at pre-determined intervals, The Hunan Contract stipulates that the lessee is obliged to “provide correct data and investment activity reports upon request by the ministry.” Hunan Contract at Art. 4.6. 49 UN Special Rapporteur on the Right to food, Olivier de Shutter, Statement ‘Large-scale land acquisitions and leases: eleven principles to address the human rights challenge’ (11 June 2009). See also, UN Special Rapporteur on the Right to Food, Olivier de Shutter, Press release “UN Special Rapporteur on the Right to food recommends guidelines to discipline ‘land


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contracts do not prioritize farming systems that have the potential to induce job creation and are generally silent on issues pertaining to labor rights and labor conditions. However, the contracts give the lessees full discretion as regards production methods. Under the contracts examined, lessees have the right to “[d]evelop and cultivate the land and harvest the crop and carry on all other activities by mechanization or such other means that the lessee shall in its own discretion deem fit and proper in the circumstances.”50 There is currently a dearth of information on the number of jobs that large-scale land acquisitions in Africa are generating and the condition of jobs that the deals are generating. More studies are needed into the link between agro-FDI and employment-creation in Africa.

2.2.5 Social/human rights concerns For many local dwellers, the price of large-scale land acquisition is massive sociocultural devastation. Negative consequences such as increased health problems, reduced access to health facilities, disruption of social networks and social cohesion, and destruction of sacred sites have been reported in many countries in Africa. For vulnerable groups that depend heavily on the commons for food, fodder, firewood, medicine, and other necessities, the impact of large-scale land acquisition is even more devastating. As a mitigating factor, large-scale land deals often come with the promise of social infrastructure and services. However, frequently, promised infrastructure and services never materialize. In a number of cases, promised services have proved inadequate and inaccessible. The contracts examined do not address the social and cultural consequences of large-scale land deals. On the contrary, the contracts grant considerable rights to investors – rights that could be exercised to the detriment of local communities if unsupervised. The right of lessees to build infrastructure on acquired land is considerable and is likely to have consequences for local communities. Under the contracts, lessees have the right to “[b]uild infrastructure such as dams, water boreholes, power houses, irrigation system[s], roads, bridges … at the discretion of Lessee upon consultation and submission of permit request with concerned offices subject to the type and size of the investment project whenever it deems so appropriate.”51 grabbing’ ” (11 June 2009) at 6 (noting that “Even ‘local content’ provisions requiring prioritisation of the local workforce in recruitment, common in extractive industry contracts, appear rare […].”) 50 Karuturi Contract at Art. 3.5; Hunan Contract at Art. 3.4; Saudi Star Contract at Art. 3.4. Emphasis mine. 51 Karuturi Contract at Art. 3.2; Hunan Contract at Art. 3.4; Saudi Star Contract at Art. 3.2 (emphasis added).



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Overall, large-scale land deals can have devastating impact on local communities and on vulnerable groups within these communities. Unfortunately, frequently contracts are silent about the social externalities associated with such land deals. According to the Bali Declaration on Human Rights and Agribusiness in Southeast Asia “States must … balance policies and laws which allow corporate investment in land development, with laws and policies which promote indigenous peoples’ customary management systems, community-based initiatives and smallholders’ participation.”52 Furthermore, the Bali Declaration urges that “States must take measures to combat discrimination and provide equal opportunities to women and strengthen women’s access to, and control over, land while respecting family and other social networks, and cultural diversity and increase their participation in decision-making processes.”53

2.2.6 Peace, security, and right to personal integrity Large-scale land acquisition can trigger intra-communal conflicts and exacerbate existing conflicts. Furthermore, large-scale land deals have the potential to threaten the peace, security, and integrity of local populations particularly when they are backed up by violence and arbitrary arrests from a State’s security apparatus. Problems also arise when agribusinesses use mercenaries, privately contracted police and para-militaries to protect their interests. Presently, few countries in Africa appear to be taking steps to ensure that there is rule of law, humane treatment, and a peaceful environment in agribusiness development areas. The contracts examined do not address the peace and security concerns of rural dwellers and do not explicitly prohibit investors from using mercenaries, privately contracted police and para-militaries. By contrast, the contracts appear to prioritize the peace and security of the investors by obliging the Ethiopian Government to provide “adequate security” to lessees upon request and without charge. Under most of the contracts, the Ethiopian Government guarantees investors peaceful and trouble-free possession. For example, according to Article 6.6 of the Karuturi Contract: The Lessor shall ensure during the period of the lease, Lessee shall enjoy peaceful and trouble free possession of the premises and it shall be provided adequate security, free of cost, for

52 Bali Declaration on Human Rights and Agribusiness in Southeast Asia (2011). 53 Id.


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carrying out its entire activities in the said premises, against any riot, disturbances or any other turbulent time other than force majeure, as and when requested by the lessee.54

Article 14 of the Karuturi Contract also stipulates: “The Lessor warrants that it has full ownership and property rights in the leased area … and shall protect the right of the lessee to the peaceful possession, use and quiet enjoyment thereof.”55 Article 6 of the S&P Energy Contract requires the lessor to provide adequate security to S&P without charge to enable S&P to carry out its contractual activities and ensure that S&P enjoys “peaceful and trouble free possession of the premises.” The Ethiopian Government assumes enormous obligations under these contractual provisions. The cost of providing “adequate security” as and when needed by foreign investors is bound to be staggering. Contractual provisions such as these put additional pressure on the Ethiopian Government to take all necessary measures, including possibly violence, to deal decisively with individuals and groups that are perceived to threaten a lessee’s peaceful possession. 2.2.6.1 Conclusion The contracts examined do not address most of the human rights and environmental concerns implicated in large-scale acquisition of farmlands. Governments in Africa are either unwilling or unable to seriously negotiate land agreements with a view to securing maximum benefit from the investments for their people. Even when a promising provision is inserted into an investment agreement, oftentimes the provision is inserted without careful consideration of the legal and institutional framework necessary to make it effective. Ambiguities further undermine the effectiveness of contractual terms. None of the contracts examined has a section devoted to defining key terms. For example, under the Karuturi Contract, the Ethiopian Government retains the right to “Terminate the land lease agreement subject to at least six months prior written notice and consent to both parties by consultation up on justified good cause.”56 However, the contract does not define what conducts might constitute “justified good cause” and does not spell out what would happen in the event that both parties do not agree to the termination. Finally, the contracts fall short of imposing clear obligations on investors. This is a big omission. The Special Rapporteur, following his Mission to Benin in 2009, stated that It [was] particularly important to ensure that foreign investors authorized to produce agrofuels in Benin are subject to clear obligations with regard to: (a) job creation and

54 Karuturi Contract at Art. 6.6 (emphasis added). See also, Hunan Contract at Art. 6.6; Saudi Star Contract at Art. 6.6. 55 Emphasis added. 56 Karuturi Contract at Art. 5.4.



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respect for labour law, including the minimum wage; (b) respect for environmental standards and effective management of natural resources; and (c) respect for the rights of local populations, in particular land users.

The Special Rapporteur further recommended “that investment agreements should include predefined penalties in the event of non-compliance with the conditions attached to the investment.”

3 Bilateral investment treaties and foreign investment in land: Ethiopian case study Three questions are addressed in this section: First, do BITs address the environmental, social, and governance (ESG) obligations of foreign investors? Second, can BITs be drafted to incorporate ESG obligations of investors? Third, what are the challenges to incorporating ESG obligations in BITs? The focus is on the BITs that Ethiopia has concluded. As of 1 June 2012, Ethiopia had concluded 30 BITs. Of the 30 BITs Ethiopia has concluded 22 are already in force (Annex 1). An examination of the BITs that Ethiopia has concluded suggests that BITs may constrain policy space and make it difficult for policy makers in Ethiopia to effectively regulate agro-FDI. Common provisions in BITs – the provision guaranteeing national treatment (NT), most favored nation (MFN), and the right to fair and equitable treatment; the provision protecting investors against expropriation; the provision for compensation in the event of war or similar disturbances; the provision guaranteeing the right to free and immediate transfer of investments; and the provisions relating to investor-State arbitration – may make it difficult for policy makers to act in the public interest if and when the need arises. As a result of the core provisions in the BITs the country has ratified, it may be difficult if not impossible for Ethiopia to adopt laws that: – Require partnership arrangements between foreign investors and local farmers; – Ban or restrict the export of produce resulting from agro-FDI; – Require that investors employ a certain amount of local labor; – Limit the amount of water that an investor can draw from a river or other local water sources; – Impose certain obligations (e.g. conservation obligations) on foreign investors without imposing similar obligations on domestic farmers; – Require foreign investors to devote a percentage of their earnings to infrastructure development; or – Require that investors recognize the prior user rights of indigenous groups or other vulnerable groups.


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3.1 Do the BITs incorporate human rights and environmental norms and principles? The BITs that Ethiopia has concluded are not sensitive to the human rights and environmental issues that are implicated when vast tracts of agricultural land are acquired by foreign investors. Furthermore, the BITs do not appear to be sensitive to broader development objectives. Four characteristics of the BITs are particularly worrisome. The BITs examined do not: (i) specifically reference human rights, environmental protection, or other social issues; (ii) avoid provisions that could constrain the ability of a host government to regulate in the public interest; (iii) impose binding obligations on investors; (iv) establish clear mechanisms for monitoring compliance or enforcing human rights or environmental rights claims; (v) incorporate, directly or indirectly, specific human rights treaties or environmental protection treaties; (vi) confer on investment tribunals the jurisdiction to consider human rights norms and principles when assessing a State’s liability under a BIT; and (vii) do not condition the availability of investor rights on the observance of international law by the investors. However, it is impossible to make broad generalizations about BITs. Despite their similarity, all BITs are not the same. The scope of a BIT depends largely on the precise words and phrases used in it.

3.1.1 No specific reference to ESG An examination of the BITs that Ethiopia has concluded indicates that few, if any, make any specific and concrete reference to sustainable development, human rights, environmental protection, or broader ESG issues. Most of the BITs do not make any specific reference to the human rights treaties or the environmental treaties that Ethiopia has ratified. The Ethiopian BITs are not unique in this regard. As Peterson and Gray rightly note, BITs “are typically bereft of references to other international commitments made by the contracting parties in the area of human rights….”57 The problem this creates is that in the event of a dispute, investment tribunals typically focus on the underlying investment contract and a relevant BIT and rarely examine human rights issues and arguments.58 57 Id., at 8. 58 Luke Peterson and Kevin Gray, International Bilateral Investment Treaties and in Investment Treaty Arbitration (2003) (observing that “there appears to be less scope for human rights issues to play a determinative role in investment treaty disputes, where investors and host states have opted to show them little regard.”).



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Some of the BITs examined recite, in the preamble, the expectation that the BITs will stimulate the flow of capital and technology, promote economic development, stimulate prosperity, and stimulate private economic initiatives. For example, in the Ethiopia-Netherlands BIT, State Parties recognize “that agreement upon the treatment to be accorded to such investments will stimulate the flow of capital and technology and the economic development of the Contracting Parties.”59 In the Ethiopia-Tunisia BIT, State Parties expressed a conviction that a reciprocal protection of investment by virtue of a bilateral agreement “is likely to stimulate private economic initiative and to increase prosperity in both countries.” The problem with these provisions is that they do not impose binding obligations on the investor or the home state of the investor. Only the BIT between Ethiopia and the Belgium-Luxembourg Union (Ethiopia-Belgium BIT) has a provision on the environment and a provision on labor rights. Regarding the environment, in Article 5 of the Ethiopia-Belgium treaty State Parties: (1) recognize the right of each Contracting Party to establish its own levels of domestic environmental protection and environmental development policies and priorities, and to adopt or modify accordingly its environmental legislation; (2) agree that each Contracting Party “shall strive to ensure that its legislation provide for high levels of environmental protection and shall strive to continue to improve this legislation”; (3) recognize that “it is inappropriate to encourage investment by relaxing domestic environmental legislation”; and (4) reaffirmed their commitments under the international environmental agreements, which they have accepted. The BIT also contains a very similar provision on labor rights. Article 5 is clearly a step in the right direction but falls short in some important respects. The precise meaning, scope, and implication of Article 5 is not clear. Furthermore, the Article does not impose any binding obligation on foreign investors.

3.1.2 Provisions that constrain policy space Some of the provisions of the BITs could potentially limit the ability of the Ethiopian Government to legislate in the public interest. The provisions relating to NT, MFN, fair and equitable treatment, and expropriation are of particular concern.

59 Emphasis added.


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3.1.2.1 Non-discrimination: national treatment and most-favored nation Most of the BITs that Ethiopia has concluded provide for NT and MFN treatment. Article 4 of the Ethiopia-Kuwait BIT states: Each Contracting State shall at all times ensure investments made in its territory by investors of the other Contracting State, fair and equitable treatment. Such treatment shall not be less favorable than that which it accords in like situation to investments of investors or investors of any third state, whichever is the most favorable.60

Pursuant to Article 3(1) of the Ethiopia-Sweden BIT, “Each Contracting Party shall apply to investments made in its territory by investors of the other Contracting Party a treatment which is no less favorable than that accorded to investments made by its own investors or by investors of third states, whichever is the more favorable.”61 A similar provision is found in other BITs that Ethiopia has concluded such as the BIT between Ethiopia and Denmark62 and that between Ethiopia and Germany.63 With specific reference to agro-FDI, the NT standard may make it difficult for a Contracting State to adopt policies aimed at encouraging small businesses and small-scale farmers as such policies could be deemed to be discriminatory. For example, the NT obligation could preclude a government from granting certain advantages (e.g. tax advantages or small enterprise development incentives) if the same advantages will not be extended to foreign investors. The NT clause may also mean that certain labor or environmental requirements cannot be imposed on agribusinesses unless similar requirements are imposed on smallscale farmers. A better approach is to include in the BITs exceptions to the NT obligation that allow policy-makers space to regulate in the public interest. For example, the Ethiopia-Israel BIT states that the NT provisions “shall not preclude a differential treatment in the laws or regulations of a Contracting Party or in the exercising of the powers conferred by those laws and regulations, regarding rights or privileges granted to its own investors, or to investments or returns of investment of its own investors.”64 Article 3(3) of the Ethiopia-Sweden BIT stipulate that the NT and MFN provision “shall not be construed so as to oblige one Contracting Party to extend to investors of the other Contracting Party the benefits of any treatment, preference or privilege resulting from any international agreement or arrangement relating wholly or mainly to taxation or any

60 Emphasis added. 61 China-Sweden BIT, Article 3(1). 62 Ethiopia-Denmark BIT, Article 3(1). 63 Ethiopia-Germany BIT, Article 3(1). 64 Ethiopia-Israel BIT, Article 3(3).



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domestic legislation relating wholly or mainly to taxation.” Unfortunately, not all the BITs that Ethiopia has concluded permit such exceptions. 3.1.2.2 Absolute standard of treatment: “fair and equitable” standard, “full protection and security,” and so forth Most BITs that Ethiopia has concluded offer foreign investments standards of protection that are absolute in the sense that they are not dependent or conditioned on how a Contracting State treats investment by nationals or nationals of third countries. Typically, the BITs guarantee: (i) fair and equitable treatment (FET)65; (ii) full protection and security in the territory of the host government66; and (iii) protection against “unreasonable or discriminatory measures” in the management, maintenance, use, enjoyment, extension, or disposal of such investments.67 Broadly construed, the standards could impose major obligations on a Contracting State – obligations that such a State may not fully understand or be able to fulfill.68 Regarding the FET standard, the United Nations Conference on Trade and Development (UNCTAD) notes that, “[s]ome tribunals have read an extensive list of disciplines into the FET clause, which are taxing on any State, but especially on developing and least-developed countries; lack of clarity persists regarding the appropriate threshold of liability.”69 The biggest challenge for a country like Ethiopia is the problem of overly broad or unrealistic interpretations of the absolute standards of treatment – interpretations that could expose the country to millions of dollars in damages in the event that the standards are violated. What is the meaning and scope of the fair and equitable standard in the BITs? Is the fair and equitable standard anchored in customary international law (CIL) or is it to be interpreted in an evolutionary manner? These questions are important because as Matthew Porterfield rightly note “linking FET to CIL results in a standard of protection that is more deferential to the regulatory authority of governments than the...‘autonomous’ standard.”70 65 See e.g. Ethiopia-Turkey BIT, Article II; Ethiopia-Israel BIT, Article 2; and Ethiopia-UK BIT, Article 2. 66 See e.g. Ethiopia-Turkey BIT, Article II; Ethiopia-Israel BIT, Article 2; and Ethiopia-UK BIT, Article 2. 67 See e.g. Ethiopia-Turkey BIT, Article II; Ethiopia-Israel BIT, Article 2; and Ethiopia-UK BIT, Article 2. 68 See generally Rudolph Dolzer, Fair and Equitable Treatment: A Key Standard in Investment Treaties, 39 The International Lawyer (2005a), 87–106. 69 See UNCTAD, World Investment Report 2012: Towards A New Generation of Investment Policies, available at: at 139. 70 Matthew C. Porterfield, A Distinction without a Difference? The Interpretation of Fair and Equitable Treatment under Customary International Law by Investment Tribunals, 3 Investment Treaty News Quarterly, no. 3(2013), 3–5.


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Unfortunately, most of the BITs that Ethiopia has concluded do not define key terms – terms that are undeniably ambiguous are unquestionably ambiguous and are potential minefields for the Ethiopian Government. 3.1.2.3 Expropriation All the BITs that Ethiopia has concluded protect foreign investment against unlawful expropriation. The BITs generally protect foreign investments against expropriation, nationalization, and measures tantamount to expropriation and nationalization. Most of the BITs cover both direct and indirect forms of expropriation. Article 5 of the Ethiopia-Denmark BIT stipulates: Investments of investors of each Contracting Party shall not be nationalised, expropriated or subjected to measure having effect equivalent to nationalisation or expropriation (hereinafter referred to as “expropriation”) in the territory of the other Contracting Party except for expropriations made in the public interest, on a basis of non-discrimination, carried out under due process of law, and against prompt, adequate and effective compensation.

Under the Ethiopia-Sweden BIT, “Neither Contracting Party shall take any measure depriving directly or indirectly, an investor of the other Contracting Party of an investment (hereinafter referred to as ‘expropriation’).”71 The Ethiopia-Kuwait BIT stipulates that investments “shall not be nationalized, expropriated, disposed, or subjected to direct or indirect measures having effect equivalent to nationalization, expropriation or dispossession.”72 The Ethiopia-Kuwait BIT also specifically provides that the term “expropriation” shall also apply to regulatory measures by a Contracting State. According to Article 6.4, the term expropriation: “shall also apply to acts of sovereign powers and to interventions or regulatory measures by a Contracting State such as the freezing or blocking of the investment, levying of arbitrary or excessive tax on the investment … or other comparable acts or measures, that have a de facto or expropriatory effect….” As with the absolute standards of treatment, the expropriation clauses in Ethiopia’s BITs are overly broad and are vague in many important respects. Key terms are not defined at all. The BITs are silent about what acts of a Contracting State will be deemed “measures tantamount to expropriation” or “measures having an effect equivalent to nationalization” The problem is that the concept of indirect expropriation can be quite broad and can be construed to extend to 71 Article 4(1). Emphasis added. Article 5 of the Ethiopia-Malaysia BIT states that “Neither Contracting Party shall take any measures of expropriation or nationalization against the investments of an investor….” Article 6 of the Ethiopia-Netherlands BIT states that “Investments of investors of one Contracting Party shall not be expropriated or nationalized or subjected to similar measures in the territory of the other Contracting Party.” 72 Emphasis added.



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regulatory measures by a Contracting State. In Metalclad Corp. vs. Mexico, the Tribunal stated: [E]xpropriation under NAFTA includes not only open, deliberate and acknowledged takings of property, such as outright seizure or formal or obligatory transfer of title in favour of the host State, but also covert or incidental interference with the use of property which has the effect of depriving the owner, in whole or in significant part, of the use or reasonably-to-be-expected economic benefit of property even if not necessarily to the obvious benefit of the host State.

The expropriation clause in BITs can severely limit policy space. Consequently, an increasing number of countries are taking time to refine their BITs with a view to ensuring that the expropriation clause in the BITs does not unduly constrain policy space. Furthermore, an increasing number of BITs provide specific and general exceptions to the obligation on expropriation. 3.1.2.4 Restrictions on performance requirements A few BITs that Ethiopia has concluded restrict the use of performance requirements. Restrictions on the use of performance requirements can limit the ability of a host government to use FDI to advance national development objectives such as rural development, enterprise development, and technology transfer. Article 3(5) of the Ethiopia-Kuwait BIT stipulates: Neither Contracting State may impose on the investors of the other Contracting State mandatory measures, which may require or restrict the purchase of materials, fuel or of means of production, transport or operation of any kind or restrict the marketing of products inside or outside its territory, or any other measures having the effect of discrimination against investments by investors of the other Contracting State in favour of investments by its own investors or by investors of third states.73

Article 3(5) will make it extremely difficult for the Ethiopian Government to adopt laws such as local content laws, local hiring laws, transfer of technology laws, or laws mandating diversity considerations in hiring as such measures are likely to be deemed to violate the NT standard as well as BIT provision precluding the imposition of performance requirements. While an increasing number of BITs that countries are now concluding provide for limited exceptions to the performance requirement standard, this is not the case with the BITs that Ethiopia has concluded.

73 Emphasis added.


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3.1.2.5 Stabilization clauses Agro-FDI is often of very long durations. Given the long duration, it is important that host countries retain the flexibility to regulate in response to changing circumstances and changes in international law. Stabilization clauses in BITs may make it difficult for a Contracting State to retain regulatory flexibility. Generally, stabilization clauses “limit the ability of governments to have new laws and regulations apply to a foreign investor that is the beneficiary of such a provision.”74 Some BITs that Ethiopia has ratified have provisions that have the same effect as standard stabilization clauses. Under the Ethiopia-Sweden BIT, a foreign investment could enjoy the protection of a BIT for as much as 40 years. Article 11(2) of the BIT between Ethiopia and Sweden stipulates that the agreement “shall remain in force for a period of twenty years” and thereafter “shall remain in force until the expiration of twelve months from the date that either Contracting Party in writing notifies the other Contracting Party of its decision to terminate this Agreement.” Article 11(3) goes on to provide that “In respect of investments made prior to the date when the notice of termination of this Agreement becomes effective, the provisions of Articles 1 to 10 shall remain in force for a further period of 20 years from the date.” The Ethiopia-Denmark BIT (Article 16), the Ethiopia-China BIT (Article 13), and the Ethiopia-Israel BIT (Article 14), all contain similar provisions but call for additional 10 years protect instead of the 20 years stipulated in the Ethiopia-Sweden BIT. 3.1.2.6 War and Riot clauses As is the case with most BITs, the BITs that Ethiopia has concluded address losses to foreign investors and foreign investment as a result of wars and related events. The BITs provide for NT and/or MFN treatment as regards any measure that the Ethiopian Government adopts in response to such losses. Article 6 of Ethiopia-Austria BIT stipulates that: An investor of a Contracting Party who has suffered a loss relating to his investment in the territory of the other Contracting Party due to war or to other armed conflict, state of emergency, revolution, insurrection, civil disturbance, or any other similar event in the territory of the latter Contracting Party, shall be accorded by the latter Contracting Party, as regards restitution, indemnification, compensation or any other settlement, treatment no less favourable than that which it accords to its own investors or to investors of any third state, whichever is more favourable to the investor.75

74 Howard Mann, Stabilization in Investment Contracts: Rethinking the Context, Reformulating the Result, Investment Treaty News Quarterly (October 2011), pp. 6–8. See also Shemberg, Andrea “Stabilization Clauses and Human Rights”, 11 March 2008, . 75 Emphasis added. See also Article 4 of Ethiopia-Malaysia BIT; Article 5 of Ethiopia-Yemen BIT.



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Article 6 of the Ethiopia-Denmark BIT appears to be even broader in scope and to cover more grounds: Investors of one Contracting Party whose investments in the territory of the other Contracting Party suffer losses owing to war or other armed conflict, revolution, a state of national emergency, revolt, insurrection, or riot in the territory of the latter Contracting Party, shall be accorded by the latter Contracting Party treatment, as regards restitution, indemnification, compensation or other settlement, no less favourable than that which the latter Contracting Party accords to its own investors or to investors of any third State, whichever of these standards is the more favourable from the point of view of the investor.76

There are at least two problems with the war and riot clauses found in most of the BITs that Ethiopia has concluded. First is their imprecision and potentially broad scope. What situations are really covered by the phrase “war, a state of national emergency, insurrection, riot or other similar events” or “war or other armed conflict, state of national emergency, revolt, civil disturbance, insurrection, riot or other similar events?” Does the phrase cover situations where a local community or an indigenous group displaced by a particular land deal decides to protest against such a deal? A second problem is that such clauses provide an incentive for a host government to take draconian measures against local communities fighting to protect communal land. In Africa communal protests against large-scale land acquisition are growing and the responses of policy makers have been questionable at best.77 In Liberia, palm oil production and acquisition of land to expand palm oil plantations in the country is pitting local communities against foreign corporations like Equatorial Palm Oil Plc. (EPO), a UK publicly listed crude palm oil producer founded in 2005.78 3.1.2.7 Dispute settlement Ethiopia’s BITs provide for investor-State arbitration and thus permit foreign investors to initiate claims directly with international arbitral tribunals. Under the Ethiopia-Sweden BIT, an investor has the right to submit an investment 76 Emphasis added. See also Article 4 of Ethiopia-Tunisia BIT; Article 7 of Ethiopia-Netherlands BIT. 77 Sonja Vermeulen and Lorenzo Cotula, Over the Heads of Local People: Consultation, Consent and Recompense in Large-Scale Land Deals for Biofuel Products in Africa, 34 The Journal of Peasant Studies 899, 904 (2010). 78 Global Witness. “UK’s Equatorial Palm Oil Accused of Human Rights Abuses in Liberia”, 20 December 2013. Accessed on June 15, 2014. . See also Sustainable Development Institute, “Community Complaint against Equatorial Palm Oil.” Accessed on June 15, 2014. .


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dispute to international arbitration and can submit claims to one of the following fora: (i) the International Center for Settlement of Investment Disputes (ICSID) for settlement by arbitration under the Washington Convention of 18 March 1965 on the settlement of Investment Disputes between States and Nationals of Other States; (ii) the ICSID under the Rules Governing the Additional Facility for the Administration of proceedings by the Secretariat of the ICSID (ICSID Additional Facility Rules); or (iii) an ad hoc tribunal setup under Arbitration Rules of the United Nations Commission on International Trade Law (UNICITRAL). The appointing authority under the said rules shall be the Secretary-General of ICSID. The Ethiopia-Sweden BIT prioritizes arbitration and stipulates in Article 8 (2) that if the Parties to a dispute have different opinions as to whether conciliation or arbitration is the more appropriate method of settlement, “the investor shall have the right to choose.” While most of the BITs that Ethiopia has concluded allow investors to submit any dispute concerning an investment between an investor of one Contracting Party and the other Contracting Party to international arbitration, the scope of investor-State dispute settlement under the BIT between Ethiopia and China is more limited. Under the Ethiopia-China BIT, the only disputes that may be submitted to an ad hoc arbitral tribunal are disputes “involving the amount of compensation for expropriation which cannot be settled within six months after resort to negotiations.”79 There are major concerns and problems with the current system investor-State dispute settlement system – concerns and problems that a developing country like Ethiopia should be aware of and seek to address proactively. While the original conception of an ISDS system may have been great, UNCTAD rightly notes that “the actual functioning of ISDS under investment treaties has led to concerns about systemic deficiencies in the regime.”80 What are these deficiencies? Perceived problems in the ISDS include: (i) exponential increase in the number of claims brought by investors against host governments; (ii) use of the ISDS to challenge sensitive public policy actions of the host government in areas such as health, environment, and sanitation; (iii) concerns about legitimacy and transparency of arbitral tribunals; (iv) expansive interpretation of treaty terms – interpretation that appear to go well beyond the original intent of Contracting States; (iv) inconsistent and contradictory arbitral decisions; and (v) concerns relating to the costs of arbitral procedure and huge monetary awards against host governments that often result. In Piero Foresti, Laura de Carli and others v. Republic of South Africa (ICSID Case No. ARB(AF)/07/1), the complainants (investors from Italy and Luxembourg) claimed that the Minerals 79 Ethiopia-China, Article 9(3); Ethiopia-Malaysia BIT, Article 8(2). 80 UNCTAD, Reform of Investor-State Dispute Settlement: In Search of a Roadmap, IIA Issue Note No. 2 (June 2013).



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and Petroleum Resources Development Act of 2002 which was passed to increase the participation of historically disadvantaged South Africans amounted to expropriation and thus constituted a violation of two of South Africa’s BITs.

3.1.3 Asymmetry in BITs To critics, BITs do not strike a necessary balance between private rights and public interest. First, most BITs, including those that Ethiopia has concluded, do not impose obligations of any kind on foreign investors but nevertheless accords these investors a host of substantive and procedural rights. Second, most BITs do not provide opportunity for individuals or groups whose rights are violated by foreign investors to seek redress through ad hoc investment tribunals. However, the same BITs guarantee to investors the right to initiate claims against host governments with ad hoc tribunals. Overall, most of the BITs examined: – Do not explicitly reference human rights or environmental protection as treaty objectives and do not address these issues in any meaningful way; – Do not incorporate human rights treaties, environmental treaties, or other relevant international law norms; – Do not condition the rights available to investors on respect of human rights or environment; – Do not impose binding obligations on investors; and – Do not create mechanisms for monitoring the activities of investors to ensure that they contribute to sustainable development. The imbalance in BITs is a growing concern in many quarters. On a positive note, some recent BITs appear to be moving in the direction of addressing investor obligations and corporate social responsibility more generally. For example, Article 16 of the BIT between Canada and Benin states: Each Contracting Party should encourage enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate internationally recognized standards of corporate social responsibility in their practices and internal policies, such as statements of principle that have been endorsed or are supported by the Contracting Parties. These principles address issues such as labour, the environment, human rights, community relations and anti-corruption.

3.2 Does Ethiopia need a “new generation” of BITs? Although “old generation” BITs with their singular focus on investor rights and investor protection remain the norm, a growing number of countries are embracing less traditional BIT models – BITs that attempt to integrate sustainability


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considerations even while protecting investor interests. Organizations like UNCTAD are now advocating the need for a “new generation” of BITs and international investment agreements more generally.81 According to UNCTAD: 1. Although many of the recently concluded IIAs follow the traditional BIT model …, others include innovations. Several of the new features are meant to ensure that the treaty does not interfere with, but instead contributes to countries’ development strategies that focus on inclusive economic growth, supports policies for industrial development, and addresses environmental and social impacts of assessments.82

Is there a need for Ethiopia to negotiate a “new generation” of BITs? The answer is an unequivocal “yes”. Although some of Ethiopia’s BITs appear to have been drafted with some considerations of their development-implication, there is no evidence that most of the BITs were negotiated with sustainable development in mind. Regarding the BITs that Ethiopia has concluded, of concern are: – Broad open-ended definition of investment that covers “every kind of asset”83; – Ambiguity, vagueness, and failure on the part of the Contracting State Parties to exercise their interpretive function. Terms such as “fair and equitable treatment,” “full protection and security,” “unreasonable or discriminatory measure,” expropriate, nationalize, and unreasonable delay are not defined in most of the BITs84; – Provision relating to investor-State dispute settlement that does not address existing weaknesses in the investor-State dispute settlement system85; – Failure in some of the BITs to include a fork-in-the-road clause86; – Inconsistency in the BITs suggesting lack of coherence in Ethiopia’s BIT obligations. For example, regarding survival clause, some BITs provide for a

81 UNCTAD, Towards a New Generation of International Investment Policies: UNCTAD’s Fresh Approach to Multilateral Investment Policy-Making, IIA Issues Note No. 5 (2013) (hereinafter “A New Generation of International Investment Policies”). 82 Id. 83 Ethiopia-China BIT, Article 1; Ethiopia-Tunisia BIT, Article 1; Ethiopia-Denmark BIT, Article 1. 84 Ethiopia-China BIT, Article 3 (fair and equitable treatment not defined). cf Ethiopia-Germany BIT, Article 3(3) (defining the term “treatment less favorable”). 85 Under the Ethiopia-China BIT, only “a dispute involving the amount of compensation for expropriation” can be submitted to an ad hoc arbitral tribunal. See Article 9(3). 86 BITs that lack a fork-in-the-road clause include: Ethiopia-Netherlands BIT; the EthiopiaRussia BIT; and, The Ethiopia-China BIT has one. See Article 9(3). The Ethiopia-Tunisia BIT also has a fork-in-the-road clause (Article 7(3)(b)). The Ethiopia-Germany BIT has what may be called a modified fork-in-the-road clause and stipulates that: “If an investor from … Germany has seized a local court in … Ethiopia, the dispute can be submitted to international arbitration only if the local court has not yet rendered a decision which finally disposes the case” Article 11(3). A similar provision appears in Article 8(4) of the Ethiopia-Israel BIT.



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10-year survival period87 and others provide for a 15-year survival period88 and even a 20-year survival period.89 With regard to temporal applicability, some BITs are retroactive (applying to investments made in the territory of a Contracting Party, whether prior to or after the entry into force of the agreement)90 and others are not (provisions apply to investments made after the date of the entry into force of the BIT)91; The absence, in most of the BITs, of a “general exception” clause or specific exceptions that permits the Ethiopian Government necessary policy space to regulate in the public interest.92 However, most of the BITs exempt from the MFN obligation, membership in custom unions, or regional trade arrangements as well as international arrangements relating to taxation; The inclusion of so-called umbrella clause – a clause that is very controversial in international investment law and has been the subject of inconsistent interpretation by arbitral tribunals93; The extension of some BIT obligations to matters relating wholly or mainly to taxation.94 Critics would argue that extending BIT obligations to taxation issues intrudes impermissibly into the domestic affairs of a sovereign State;

87 Ethiopia-China BIT, Article 13(3) (providing a 10-year survival period). Ethiopia-Tunisia BIT, Article 12 (providing for a 10-year survival period). Ethiopia-Israel BIT, Article 14 (also providing for a 10-year survival period). 88 Ethiopia-Netherlands BIT, Article 14 (3) (Stipulating a 15-year survival period). EthiopiaRussia BIT, Article 12 (also stipulating a 15-year survival period). See also Ethiopia-Germany BIT, Article 12(3). 89 Ethiopia-Finland BIT, Article 17 (stipulating a 20-year survival period). 90 Ethiopia-Netherlands BIT, Article 10; Ethiopia-Germany BIT, Article 9; and Ethiopia-Israel BIT, Article 12. 91 Ethiopia-Tunisia, Article 10; Ethiopia-Russia BIT, Article 11. 92 Cf. Ethiopia-Germany BIT, Article 3(3) (stating that “Measures that have to be taken for reasons of public security and order, public health or morality shall not be deemed ‘treatment less favorable’”). 93 Ethiopia-Germany BIT, Article 2(3) (stipulating that “Each Contracting Party shall observe any commitment it may have entered into with regards to investments of investors of the other Contracting Party.”). 94 Article 4 of the Ethiopia-Netherlands BIT is devoted to “Taxes and other Fiscal Matters.” Article 4 extends the NT and MFN obligation to matters relating to “taxes, fees, charges and to fiscal deductions and exemptions.” Article 4 permits three exceptions only: (i) obligation under double taxation treaties; (ii) obligations assumed as a result of participation in a custom union or economic union; and (iii) obligations assumed on the basis of reciprocity with a third state. Cf. Ethiopia-Germany BIT, Article 4 (providing exception for preferences and treatments resulting from “any international agreement or arrangement relating wholly or mainly to taxation or any domestic legislation relating wholly or mainly to taxation.”).


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The inclusion in the BITs of an expansive transparency obligation that most countries in Africa, given their present state of development, will be unable to meet95; Very short “definition” section suggesting a failure to define obligation of contracting parties with sufficient clarity.96

Some BITs that Ethiopia has concluded appear to be more progressive than others as far as preserving domestic policy space is concerned. For example, evident in some of Ethiopia’s BITs are: – A limitation on what counts as investment. Some BITs explicitly stated that to qualify as an “investment,” such an investment must be in accordance with the laws and regulations of Contracting Party97; – Absence of a strict NT requirement98; – Provision for periodic consultation for purposes of reviewing the implementation of the BITs99; and – Limited exception to the NT and MFN obligation.100 Article 7 of the EthiopiaIsrael BIT (Exceptions) permits either Contracting Party to “take measures strictly necessary for the maintenance or protection of its essential security interests.” Article 14 of the Ethiopia-Finland BIT (General Derogation) has a security exception and a “public order” exception.101 In conclusion, most of the BITs examined do not address sustainable development directly and do not appear to afford the Ethiopian Government necessary policy space to address these issues if and when the need arises. Implicit in the BITs is an assumption that domestic law and institutions are strong, will address the 95 At least one BIT that Ethiopia has concluded imposes a transparency obligation on Contracting Parties. See Ethiopia-Finland BIT, Article 15. 96 Ethiopia-Tunisia BIT, Article 1 (only five terms are defined: “investment;” “Returns;” “Investor;” “territory;” and “Associated Activities.”). Ethiopia-Netherlands BIT, Article 1 (only three terms are defined: “Investments;” “Nationals;” and Territory”). Ethiopia-Russia BIT, Article 1 (Only five terms are defined: “Investor;” “Investment;” “Returns;” “Territory;” and “Legislation.”). 97 Ethiopia-China BIT, Article 1; Ethiopia-Tunisia BIT, Article 1 98 Ethiopia-China BIT does not have a NT requirement. 99 Ethiopia-China, Article 12; Ethiopia-Netherlands BIT, Article 11; Ethiopia-Germany BIT, Article 11. 100 See e.g. Ethiopia-Germany BIT, Article 4 (exempting “any domestic legislation relating wholly or mainly to taxation.”). Ethiopia-Israel BIT, Article 3(3). 101 Article 14 of the Ethiopia-Finland BIT (General Derogation) permits Contracting Parties to take any action “necessary for the protection of its essential security interests in time of war or armed conflict, or other emergency in international relations.”



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issues that are not addressed in the BITs, and will impose necessary discipline on foreign investors; this has not proved to be the case for most countries in Africa. There is an urgent need for Ethiopia and most other countries in SSA to review their investment policy with a view to striking the necessary balance between the goals of investor protection and the goals of sustainable development. Clearly, to maximize the benefits associated with foreign investment in land, there must be complete alignment between domestic law, land agreements, BITs, and other international agreements that governments in Africa are party to.

4 Disciplining foreign investment in land in Africa: options and challenges The demand for farmland will continue to grow given growing world population, the rise in the size of the middle class in emerging economies like China, and predictions regarding continued economic growth in these economies. Africa needs massive investment in agriculture and agro-FDI can provide the capital needed for infrastructure and other developments in the continent.102 For most countries in Africa, then, the choice is not whether to wholly embrace or totally reject FDI in land. The challenge is how to maximize the potential benefits that come from FDI in land while minimizing related costs. The UN Special Rapporteur on the Right to Food urges that “When considering a proposed investment in agriculture that implies large-scale shifts in land use, governments should first consider the opportunity costs involved.”103 Furthermore, organizations such as the Food and Agricultural Organization and the World Bank admit that “where rights are not well defined, governance is weak, or those affected lack voice, there is evidence that such investment can carry considerable risks of different types.”104 The problem is that most countries in Africa: (i) do not have the tools or expertise to accurately judge the full cost (social, environmental, and economic) of an investment project; (ii) do not appear to be very mindful of their obligations under international human rights law and 102 Olivier de Shutter “investment in agriculture is needed, particularly in some regions in developing countries where this sector has been neglected for the past 30 years. Lack of investment is responsible for the fact that, for example, average cereal yields in Africa have stagnated at 1.3 tons per hectare, whereas the figure is 4.7 tons per hectare for East Asia. There is no doubt that such discrepancies can be reduced.” 103 Forward, Center for Human Rights and Global Justice, Foreign Land Deals and Human Rights: Case Studies on Agricultural and Biofuel Investment (2009). 104 Briefing Note, supra note 1, at 2.


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international environmental law when they engage foreign investors; and (iii) do not invite or allow public participation in decisions regarding whether to accept or reject a particular investment proposal. What then for countries in SSA going forward? Can anything be done to balance the interest of foreign investors and those of host States and host communities? First, countries need to pay closer attention to the investment agreements that they are negotiating and need to introduce greater transparency into the contract negotiation process. Second, there is an urgent need for countries in Africa to review their BIT program with a view to moving toward more balanced BITs and IIAs.

4.1 Proposals regarding contracts for large-scale acquisition of agricultural land Whether large-scale acquisition of farmland will contribute to poverty reduction and sustainable development in Africa in the long term will largely depend on the way the arrangements are structured and the terms of related investment contracts? As the UN Special Rapporteur on the Right to Food rightly notes: “There are a variety of ways to channel investment in order to combat rural poverty, and there are a variety of strategies to ensure that land will be used in ways that are productive and can contribute to local food security.”105 Few countries have carried out comprehensive studies to understand the potential impact of large-scale land acquisition on smallholders and on vulnerable groups such as women and indigenous populations. While organizations such as the Food and Agricultural Organization and the World Bank admit that “many large farming ventures attempted in the past have proven unsuccessful,” why these projects failed in the past and whether the failures could have been avoided through the use of better negotiated contracts has not been the subject of much study. There are many steps that governments in Africa can take to ensure that the land contracts they conclude with investors (both foreign and domestic) effectively distributes the risks, costs, and benefits associated with private investment in agricultural land. There is need for governments to introduce greater transparency in contract negotiations and greater accountability in contract implementation. Using lawyers who are experts in international investment law and using multi-disciplinary team of experts when negotiating land agreements with foreign investors is necessary given the growing complexity of international investment law and arbitration and the highly technical and scientific issues frequently encountered in land deals. It is important that land 105 Special Rapporteur, supra note 49.



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agreements with private investors allow sufficient regulatory flexibility to allow governments necessary policy space to respond to changing situations and changes in international law. Finally, it is important that land agreements with private investors are concluded against the backdrop of obligations that Contracting States have undertaken under international human rights law and international environmental law and that efforts are made to ensure that these contract terms do not undermine these obligations.

4.2 Proposals regarding bilateral investment treaties 4.2.1 Comprehensive review of BITs and other IIAs Most countries in Africa are yet to carry a comprehensive risk assessment of the BITs they have ratified. Only a complete and comprehensive review of existing BITs will help countries assess the true cost and benefits of BITs. In 2009, South Africa’s Department of Trade & Industry (the “DTI”) initiated a review of the BITs that South Africa had concluded since 1994.106 The DTI admits that prior to 1994, South Africa did not fully appreciate the risks that BITs posed and as a result “entered into agreements that were heavily stacked in favour of investors without the necessary safeguards to preserve flexibility in a number of critical policy areas.”107

4.2.2 A coherent and development-oriented FDI policy Before embarking on massive agro-investment underwritten by foreign investors, countries in Africa must develop and operationalize development-oriented FDI policies. Investment policies must be balanced and must be fully integrated into broader development goals and objectives. According to UNCTAD, a balanced investment policy must strive to “create synergies with wider economic development goals or industrial policies, and achieve seamless integration in development strategies”108; “foster responsible investor behavior and incorporate principles of [Corporate Social Responsibility]”109; and “ensure policy

106 July 107 108 109

The Department of Trade and Industry, Republic of South Africa, NOTICE 961 OF 2009, 7 2009. Id. UNCTAD, World Investment Report 2012 24 (2012) (emphasis added). Id. Emphasis added.


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effectiveness in their design and implementation and in the institutional environment within which they operate.”110 As part of the assessment of the country’s BIT regime, South Africa’s DTI found that the country’s approach to both inward and outward FDIs “had not been informed by a holistic policy perspective but rather a patchwork of general policy considerations.”111 The Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises has also drawn attention to the problem of domestic and international policy incoherence.

4.2.3 A “new generation” of BITs The trend is in the direction of a “new generation” of BITs.112 Some positive changes are emerging at the regional level. For example, in June of 2012, Member States of the Southern African Development Community (SADC) concluded work on the draft SADC Model Bilateral Investment Treaty Template with Commentary (Model BIT).113 Novel features of the Model BIT include Part 3 titled “Rights and Obligations of Investors and State Parties.” Part 3 addresses issues such as Environmental and Social Impact Assessment (Article 13); Minimum Standard for Human Rights, Environment and Labour (Article 15); Corporate Governance Standards (Article 16); and Investor Liability (Article 17). Unfortunately, SADC Member States do not appear keen to include features of the SADC Model BIT in the BITs that they are negotiating. To date, only South Africa has taken steps to move away from the traditional approach to BITs. On 23 June 2013, South Africa served a notice of termination in respect of its BIT with Spain; the BIT terminated on 23 December 2013 at the expiration of the 6 months’ notice called for in the agreement. South Africa’s BITs with Belgium & Luxembourg (notice served on 7 September 2012), Germany (notice served on 23 October 2013), Switzerland (notice served on 30 October 2013) and The Netherlands (notice served on 1 November 2013) have either been terminated or are in the process of being terminated. On 29 October 2013, South Africa’s acting Minister of Trade and Industry published, for public comments, the Promotion and Protection Investment Bill (PPI Bill). If passed, the BPI Bill will

110 Id. Emphasis added. 111 Id. 112 A New Generation of International Investment Policies, supra note 81. 113 The model is available here:



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eventually replace South Africa’s existing BITs.114 In the PPI Bill, there is a clear attempt to clarify key terms, introduce exception clauses, and limit access to the investor-state dispute settlement mechanism. Overall, there is now a growing trend toward “balanced” investment treaties. Balanced treaties are those that “accommodate the home state’s interests in conserving regulatory space by introducing provisions that avoid liability for treaty violations by identifying circumstances in which a state may regulate foreign investment.”115 Novel provisions can be introduced to limit the discretion of arbitral tribunals and prevent expansionist interpretations of treaty terms. Achieving a balanced treaty may require: – that countries reject the use of “model” BITs; – that the content of obligations is clear and free of ambiguity; – that vague and ambiguous terms are defined with sufficient clarity; – that BITs concluded have built-in mechanisms for interpreting ambiguous terms; – that clauses that address investor obligations are inserted in future agreements; – that BITs permit exceptions or preclusion of liability clauses116; – that problems in the investor-State dispute settlement system are addressed proactively in future BITs. Novel features might include: a time-limit for investors to bring claims; a fork-in-the-road clause; requirement of transparency in arbitral proceedings; a provision permitting ad hoc tribunals to accept amicus curaie briefs; and a provision permitting a State against whom a claim is brought by an investor to assert as a defense, counterclaim, right of set off, or other similar claim117; and – that countries consider clauses that limit the scope of state obligations through the use of general exceptions and carve outs. Some BITs (e.g. Canada-Benin BIT) now have general exception clauses that are very similar to those in Article XX of the General Agreement on Tariffs and Trade.118

114 See Ministry of Trade and Industry, Republic of South Africa, Promotion and Protection Investment Bill, 2013, General Notice 1087, Government Gazette No. 36995. 115 M. Sornarajah, Mutations of Neo-Liberalism in International Investment Law, 3 Trade, Law and Development, no. 1 (2011), 203, 228. 116 For example, Article 10 of Canada’s 2004 Model BIT for the Promotion and Protection of Investments. Available at: . 117 See Investment Agreement for the COMESA Common Investment Area. See also, UNCTAD. 118 Article XX, General Agreement on Tariffs and Trade 1994, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A.


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4.2.4 Common African position on international investment rule-making African countries must urgently explore the possibility of developing a common African position on FDI and international investment rule-making more generally. A coordinated African voice on investment policy would help address problems related to lack of negotiation capacity, prevent a race to the bottom, and strengthen the ability of these countries to defend their offensive and defensive interests in BIT negotiations. While some regional economic communities in the Africa have attempted to develop model BITs, there is as yet no coordinated African voice on BITs and IIAs and no attempt to adopt a common position when it comes to BITs.

4.2.5 Interrogate fairness in South–South investment contracts and BITs Companies registered in emerging markets in Asia and Latin America are making major inroads in Africa and are gradually making their mark in the agricultural sector in the continent. However, South–South investments do not automatically yield win–win outcomes for participating countries. Furthermore, there is no evidence that compared to North–South investments South–South investments offers real opportunities for countries in Africa to address core development challenges. The BITs reviewed do not reveal major differences between the BITs that Ethiopia concluded with developed countries and those that it concluded with developing countries. On the contrary, in their BITs, developing countries appear to be adopting essentially the same model that developed countries have traditionally used.119 It is time to seriously interrogate fairness and accountability in South–South trade and investment relations. Questions must also be increasingly asked about the cost and benefit of South–South trade and investment links for poor developing countries particularly the least developed countries in Africa.

5 Conclusions The pressure on the land in Africa is growing and is likely to intensify in the future given the planned expansion of agribusiness sector including the planned

119 See generally Uche Ewelukwa, China-Africa Bilateral Investment Treaties: A Critique, 35 Michigan Journal of International Law, no. 1 (2013), 131.



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expansion of agrofuel production and renewed determination to address food insecurity in Africa. Acquisition of large-scale agricultural land in Africa raises a host of environmental, social and governance issues and concerns. Although large-scale acquisition of land for agricultural purposes promises immense gains to countries in Africa, the benefits associated with such investments are not guaranteed. It is therefore important for countries to seriously assess benefits and costs associated with such investments. In response to the efforts of Benin to develop the country’s agrofuel sector, the UN Special Rapporteur on the Right to Food warns that agrofuel production “will not contribute to the country’s human development if, rather than improve farm incomes, it increases inequalities in rural areas by rendering access to land ownership more difficult for small farmers.”120 According to the Special Rapporteur, the production of agrofuels for export “may jeopardize food security if it reinforces the country’s dependence on food imports, and hence its exposure to price volatility, and if it causes food produced locally to become more expensive.”121 Carefully drafted land contracts are indispensable in any effort to manage and discipline agro-FDI in Africa. Countries also need to review their BITs with a view to addressing development challenges that they presently pose and ensuring that foreign investment advance the goals of sustainable development in the continent. Foreign investments deserve maximum protection and enabling business environment is necessary if countries in Africa are to be competitive in todays global environment. Going forward, the challenge for countries in Africa is to establish the legal and institutional framework that is business-friendly and at the same time advances sustainable development objectives.

References De Schutter, O., “G20 Action Plan Addresses Symptoms, Not Causes of Food Insecurity”, africanagricultureblog.com, 27 June 2011. Doya, David Malingha, “Karuturi Global Plans $500 Million Investment in Tanzania Food Production”, Bloomberg, 18 August 2011. EchoGéo, “Land for Agribusiness International? A Dilemma for Land Policy Madagascar”, EchoGéo, No. 11, December 2009/February 2010. ET, “Ethiopia Offers India Farmland for Investment”, Economic Times (New Delhi), 2 February 2011. FAO, “FAO Head Warns on Land-Grabbing: Foreign Investment as Tool for Development”, United Nations Food and Agriculture Organisation Media Centre, 12 May 2011. 120 A/HRC/13/33/Add.3. 121 Id.


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Goswami, R., “African Landrush”, Infochange News & Features, 5 April 2010. Hazra, A., “India Joins Race for Land in Africa, China Way Ahead”, Hindustan Times, 4 May 2009. Heinlein, P., “Foreign Agro Firms Scoop up Ethiopian Farmland”, Voice of America Online, 22 February 2010. IANS, “India Offers to Spur Green Revolution in Drought-Hit Tanzania”, Indo-Asian News Service (IANS), 15 September 2009, p. 40. IANS, “Low Cost, High Returns Make Africa Attractive to India Inc.”, Indo-Asian News Service (IANS), 5 April 2011. Le Monde, “In Madagascar, an Indian Company Plans to Rent Nearly 500,000 Ha”, Le Monde (France), 21 March 2009. McConnell, T., and J.Overdorf, “New Scramble for Africa’s Land”, The Global Post, 5 October 2010. McLure, J., “Ethiopian Farms Lure Investor Funds as Workers Live in Poverty”, Bloomberg, 31 December 2009. Metho, O., “Response to Karuturi CEO on His Ethiopia Land Grab”, Solidarity Movement for a New Ethiopia (SMNE), Addis-Ababa, 10 November 2010. Metho, O., “Major Loopholes in Land Lease Contracts Raise Many Questions”, Statement by Solidarity Movement for a New Ethiopia (SMNE), Addis-Ababa, 12 May 2011a. Metho, O., “An Open Letter to the People of India, a Day Light Robbery in Ethiopia: ‘Doing Business’ with African Dictators”, Solidarity Movement for a New Ethiopia (SMNE), AddisAbaba, 15 June 2011b. Mihretie, K., “Ethiopia on the Verge of Colony of Many”, Anyuak Media, 31 January 2010. Mitra, D., “Uganda Offers Farmland for Indian Investment”, Indo-Asian News Service (IANS), 20 August 2010. NAPM, “Sangharsh to UPA: Ensure Land Rights: Stop Land Acquisition and Displacement”, Press Release by National Alliance of People’s Movements, 5 August 2011. Nelson, D., “India Joins ‘Neocolonial’ Rush for Africa’s Land and Labor”, The Telegraph (Calcutta), 28 June 2009. NGOs, “Stop Land Grabbing Now!” A Public Statement Led by La via Campesina, FIAN, Land Research Action Network, GRAIN and Signed by Several Dozen Other Organisations. List of co-signers is, available at: , 22 April 2010. Pambazuka, “Land ‘Investment’ Deals in Africa: Say ‘No Way!’”, Pambazuka News, 1 July 2011. Patkar, M., Interview with Medha Patkar of the Narmada Bachao Andolan and the National Alliance of People’s Movements at the “Sangharsh to UPA: Ensure Land Rights: Stop Land Acquisition and Displacement” Rally in New Delhi, 5 August 2011. Ramesh, M., “Solvent Extractors Want Govt Aid to Buy Farmland Abroad”, The Hindu Businessline, 27 October 2009. Ramsurya, M.V., “Indian Companies Buy Land Abroad for Agricultural Products”, Economic Times (New Delhi), 2 January 2010. Sahai, S., “The New Colonizers”, Deccan Herald, 27 November 2010. Sharma, D., “With Farmlands Being Grabbed, Africa Too Awaits March of the Millions”, Ground Reality, 4 February 2011, p. 42. Smaller, Carin, and A.Howard Mann, A Thirst for Distant Lands: Foreign Investment in Agricultural Land and Water (Winnipeg, Manitoba, Canada: International Institute for Sustainable Development, 2009). Vashisht, D., “Punjab’s African Plot”, Indian Express, 11 July 2010.



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von Braun, J., and R.Meinzen-Dick,“‘Land Grabbing’ by Foreign Investors in Developing Countries: Risks and Opportunities”, IFPRI Policy Brief, 13 April 2009. World Bank, Rising Global Interest in Farmland: Can It Yield Sustainable and Equitable Benefits? (Washington, DC: World Bank, 2010). Worldwatch, “‘Land Grabs’ in Agriculture: Fairer Deals Needed to Ensure Opportunity for Locals”, World Watch Institute, 26 July 2011.


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Article Lorenza Paoloni* and Antonio Onorati

Regulations of Large-Scale Acquisitions of Land: The Case of the Voluntary Guidelines on the Responsible Governance of Land, Fisheries and Forests Abstract: This article focuses on the recent international agreement now known as Voluntary Guidelines on the Responsible Governance of Land, Fisheries and Forests. The drafting process for this international agreement, achieved through a transparent consultation activity, started by FAO and finalized through intergovernmental negotiations led by CFS (Committee on World Food Security, a body of the U.N.), also including the participation of civil society organizations, international organizations, private sector representatives, academics and researchers. The engagement of rural social movements and other Civil Society Organizations in the negotiation process is an unprecedented effort in influencing governments to establish guidelines to gain greater access to land resources at the global scale. The Guidelines aim to promote food security and sustainable development by improving secure access to land, fisheries and forests, especially for small food producers, and protecting the legitimate tenure rights of millions of people against forms of grabbing, concentration, commodification and privatization of land which are shaping agrarian systems. They have been elaborated on the basis of human rights and in respect of local communities rights. From a strictly legal point of view, the Guidelines are not mandatory and hence they are not a source of legally binding effects for every single State. They do not derive from a formal legislative proceeding, and they are the result of a consultation and negotiation process coming from the bottom. Every State and international organization is called on to guarantee the implementation, monitoring and evaluation of the Guidelines. The authors contend, with critical arguments, that the process of consultation and negotiation that led to the endorsement of the Guidelines is quite relevant – in the current context of the

*Corresponding author: Lorenza Paoloni, Department of Law, University of Molise, Campobasso, Italy, E-mail: [email protected] Antonio Onorati, NGO Crocevia-Centro Internazionale, Rome, Italy, E-mail: [email protected]


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large-scale land acquisitions – and very significant because it involved civil society and social movements, giving rise to an innovative instrument of soft law. Keywords: land tenure, land grabbing, food security, civil society, soft law DOI 10.1515/ldr-2014-0011

1 Introduction The drafting process of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security1 is an unprecedented event in the framework of large-scale land acquisitions. This process, finalized on 11 May 2012 is the result of a large collective effort of the International Facilitation Group,2 established by the International Planning Committee for Food Sovereignty3 and the Civil Society Mechanism4 1 Hereafter referred to as the VGGT. The entire document on Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security is available at: . 2 This Group consisted of 26 members fromall continents and had the participation of representatives of the following organizations: World Alliance of Mobile Indigenous Peoples (WAMIP), Friends of the Earth International, CENESTA, Asian Peasant Coalition, International Collective in Support of Fisherworkers (ICSF), International Indian Treaty Council (IITC), CROCEVIA, FIAN International, World Forum of Fish Harvesters and Fish Workers (WFF), Focus on the Global South, Arab Group for the Protection ofNature, IMSE, La Via Campesina, MAELA, National Indigenous Peasant Movement of Argentina (MNCI), Network of Farmers´ and Agricultural Producers´ Organizations of West Africa (ROPPA), Pesticide Action Network Asia and the Pacific (PAN-AP), Housing and Land Rights Network of Habitat International Coalition (HIC-HLRN). After the creation of the Civil Society Mechanism of the CFS in May 2011, this group became a CSM working group and more organizations such as Action Aid, OXFAM and others joined the group. The group was coordinated by Sofia Monsalve from FIAN and supported by International focal point of IPC, Antonio Onorati. 3 Hereafter referred to as IPC. IPC is a platform of more than 42 large global and regional networks of small food producers organizations. 4 Hereafter referred to as CSM. “Civil society organizes its own participation through the Civil Society Mechanism. The CSM facilitates civil society engagement with the CFS by sharing information among civil society networks and organizing consultations on issues that the CFS is working on. Through the CSM civil society groups can develop common positions when possible, and agree to present the range of positions where there is no consensus. The CSM structures itself around ‘constituencies’ and geographical regions. The constituencies are farmers, fisherfolk, landless, indigenous peoples, pastoralists, agricultural workers, urban poor, women, youth and NGOs. Representatives from the constituencies and the regions make up a coordinating committee which guides the CSM”, Glopolis, Why Does Responsible Investment in Agriculture Matter? (2013), available at: .


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(Civil Society Organizations’5 representatives in the Committee on World Food Security6). This article was inspired and written on the basis of published and unpublished documents elaborated by CFS officials and CSOs representatives during this drafting process. Since the whole process ended quite recently, the literature on this subject is not very extensive. It is necessary to underline that the authors of the present article are involved in the drafting process of the VGGT, consequently some of their opinions and statements are influenced by their engagement in this process. As is well known, large-scale land acquisitions have become one of several factors that bring significant change to world farmland use. New forms of grabbing, concentration, commodification and privatization of land are shaping the agrarian systems. These forms of “global land rush” constitute the phenomenon of land grabbing, which, according to the authoritative definitions of Olivier De Schutter, U.N. Special Rapporteur on the Right to Food, consists in “the acquisition or long-term lease of large areas of land by investors”7 and in a global enclosure movement in which large areas of arable land change hands through deals often negotiated between host governments and foreign investors with little or no participation from the local communities who depend on access to those lands for their livelihoods. While recognizing that these transactions should be more closely scrutinized, 5 Hereafter referred to as CSOs. 6 Hereafter referred to as CFS. It is the top forum of the United Nations for reviewing and following up policies concerning world food security. “The Committee on World Food Security is a UN committee that brings together not only member states but also civil society, the private sector, research networks, other UN bodies and philanthropic organizations in the foremost international platform for work toward the elimination of hunger and ensuring food security and nutrition for everyone. It had existed for a long time as a committee within the UN Food and Agriculture Organization (FAO), but it was reformed following the global food price crisis, which highlighted the need for improved coordination and governance within the international food system. The CFS now links the member countries of FAO, the International Fund for Agricultural Development (IFAD) and the World Food Program (WFP) and reports to the UN Economic and Social Council (ECOSOC). Other UN and other intergovernmental bodies, such as the Standing Committee on Nutrition, the High Level Task Force on the Global Food Security Crisis and the World Bank participate in the CFS. Physically the CFS is based in Rome, in the offices of FAO. Since its reform in 2009, the CFS has agreed Voluntary Guidelines on land tenure and a Global Strategic Framework for Food Security and Nutrition along with work on the food security implications of price volatility, climate change, social protection systems and biofuels. As well as the current negotiations on responsible agricultural investment principles, the CFS is also developing an Agenda for Action on food security in protracted crises” (Glopolis (2013), supra note 4). 7 O. De Schutter, How Not to Think of Land-Grabbing: Three Critiques of Large-Scale Investments in Farmland, 38 The Journal of Peasant Studies, no. 2 (2011), 249–279.


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some commentators see opportunities in this development, either because it means more investment in agriculture and thus productivity gains or because it will accelerate the development of a market for land rights that could benefit current land users, provided their property rights are recognized through titling schemes.8

The first major description of land grabbing was detailed by the nongovernmental organization GRAIN9 in a 2008 publication10 where it is reported how agribusiness development constitutes the prime objective behind land deals, despite the “win–win” rhetoric of governments and investors that promote such agreements as development opportunities for land-selling states. This phenomenon, increasingly widespread in the Global South, jeopardizes the land tenure11 of those who use the land not only as a source of nourishment for themselves but also to pursue food sovereignty and to contribute to national food security. Land grabbing is organized by businessmen – often with public policy support – and governments who aim to produce energy and food supply for internal or global market or to use land for speculative purposes, expecting a rise in the future value of land and related natural resources (water, biodiversity, minerals, energy, etc.). Indeed, each State must strengthen its responsibility for control measures to avoid land acquisition by economic actors who are not interested in agriculture but only in the mere profits derived from the land rent. In this framework, the land is regarded as another commodity, while both food security and people’s sovereignty are threatened.12

8 O. De Schutter, The Green Rush: The Global Race for Farmland and the Rights of Land Users, 52 Harvard International Law Journal, no. 2 (2011), 504. 9 GRAIN is a small international non-profit organization that works to support small farmers and social movements in their struggles for community-controlled and biodiversity-based food systems: . 10 GRAIN, Seized! The 2008 Landgrab for Food and Financial Security, available at: . 11 According to European Commission (EC), EU Land Policy Guidelines (Brussels, 2004), available at: , land tenure should be defined broadly as the “system of access to and control over land and related resources”. It determines the rules and rights that govern the appropriation, cultivation and use of natural resources on a given space or piece of land. However, it is not land itself that is owned, but the rights and duties relating to it. The rights and duties held by individuals or families are themselves embedded in a set of rules and norms, defined and enforced by authorities and institutions that may be those of rural communities and/or of the state. 12 “The importance of land use when large tracts are acquired to produce industrial crops for export is one such process that often combines with new sorts of actors brokering new practices and global relationships” N.L. Peluso and C. Lund, New Frontiers of Land Control: Introduction, 38 The Journal of Peasant Studies, no. 4 (2011), 669.


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There are two main issues that are addressed in this article. The first one is how large-scale investments in the world are changing the use of arable land, farmers’ rights to cultivate and, in general, the access to land. Land is not only to be seen as a traditionally productive asset13 but also as a natural resource, a special “commons”14 of the food producers comprised many diverse interests for its use, and a territory which people have traditionally owned, occupied or otherwise used or acquired and which they have the right to own or use, develop and control.15 The second issue is the involvement of rural social movements and other CSOs in the negotiation process of the VGGT,16 as a new reference to improve the governance of tenure of land, fisheries and forests at national and global levels. This engagement is an unprecedented effort in influencing governments to establish guidelines to gain greater access to land resources at the global scale. In the present context, such engagement must be considered truly innovative, because it represents the first attempt made on the basis of a participatory approach “bottom-up”.17 This article consists of seven sections. Section 2 examines some profiles related to the land grabbing phenomenon and the threat to food security and sovereignty triggered by the different and distorted utilization of farmland in every part of the planet. Section 3 describes the background of the debate within FAO and civil society during the consultation process. Section 4 deals with the

13 “Land means different things to different people. While an economist might define land as the totality of natural resources in a given area, a lawyer might focus on boundaries and the mineral rights therein. But a farmer’s answer is likely to be simpler: land is the farmer’s capital. Land is the soil and water utilized in the production of crops for the local or global market. In the context of an increasingly globalized world, land rights are paramount – particularly in the Global South (Asia, South America, Africa and Australia). And as governments and multinational corporations buy up land, small farmers and indigenous groups are finding themselves edged out” (A.M. Coleman, The Great Land Rush, available at: , 13 September 2012), September 2012). 14 In this sense, see G. Ricoveri, Nature for Sale. The Commons Versus Commodities (London: Plutopress, 2013), pp. 76–79; Alden Wily L., Whose Land Is It? Commons and Conflict State. Why the Ownership of the Commons Matters in Making and Keeping Peace, 2008, 1, . 15 This definition refers to the Article 26 of United Nations Declaration on the Rights of Indigenous Peoples, Resolution adopted by the General Assembly, 13 September 2007. 16 Decision of the Committee on World Food Security (CFS) at its Thirty-Sixth Session in October 2010, Rome, FAO. 17 A. Tal and J.A. Cohen, Bringing “top-down” to “bottom-up”: a new role for environmental legislation in combating desertification, 31 Harvard Environmental Law Review no. 1 (2007), 164–217.


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content of the VGGT. Section 5 illustrates some of the limitations of the VGGT. Section 6 discusses the VGGT’s legal nature and the implementation process. Section 7 is dedicated to conclusions.

2 Large-scale acquisition of land and the phenomenon of land grabbing Within a few years, acquisition of foreign farmland has become an issue with plenty of explosive potential for the environment and security in most regions of the planet. Large-scale land investments can create opportunities for development, because of their capability to generate infrastructures and employment, increase public revenues and improve farmer’s access to technologies and credit.18 According to O. De Schutter “Large-scale acquisitions and leases are one of the key new trends that emerged out of the 2008 global food crisis. Some major food importing capital exporting countries have indeed lost confidence in global markets as a stable and reliable source of food for their national food security”.19 Over the last decade, as population has grown, food-importing nations and private investors have been securing land abroad to use it for agriculture.20 On the basis of an estimate from IFPRI,21 since 2006, between 15 and 20 million hectares of farmland in developing countries have been subject in transactions or negotiations involving foreign investors. OXFAM22 reports the recent alarming 18 Center for Human Rights and Global Justice (CHRGJ), Foreign Land Deals and Human Rights. Case Studies on Agricultural and Biofuel Investment (New York: NYU School of Law, 2010). 19 O. De Schutter, Large-scale land acquisitions and leases: A set of core principles and measures to address the human rights challenge, 2009, available at: . 20 M. Kugelman, “The global farmland rush”, New York Times, 5 February 2013. He also asserts: “Poor governments have embraced these deals, but their people are in danger of losing their patrimony, not to mention their sources of food.....The commoditization of global agriculture has aggravated the destabilizing effects of these large-scale land grabs. Investors typically promise to create local jobs and say that better farming technologies will produce higher crop yields and improve food security”. 21 The International Food Policy Research Institute (IFPRI) seeks sustainable solutions for ending hunger and poverty. 22 OXFAM, ‘Our Land, Our Lives’. Time out on the global land rush (2012) available at: . OXFAM is an international confederation of 17 organizations net worked together in 92 countries, as part of a global movement for change, to build a future free from the injustice of poverty. More useful data for understanding the evolution of the phenomenon


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data: land equivalent to eight times the size of Britain was sold or leased worldwide in the last ten years. A study by the World Bank23 shows that 45 million hectares of farmland worldwide were sold or leased in 2009 alone. Seventy percent of these land deals were concentrated in Mali, Libya, Sudan, Ethiopia, Madagascar and Mozambique. In the last four years alone, international investors and government bodies have acquired nearly 60 million hectares of land in Africa. However, these land deals are not just confined to the continent of Africa, which holds, as it is known, two thirds of the world’s uncultivated arable land. One of the latest releases on this issue reports: in the Middle East, Bahrain has seen political upheaval and protest in the wake of a major land deal within its borders. White South African farmers are buying up land in Georgia, while in Australia a Chinese company has offered to buy 80,000 hectares of farmland. One of Asia’s poorest nations, Cambodia has signed 15% of its land over to private companies (made easier by the Khmer Rouge’s prohibition of private property and subsequent burning of all land titles), and the Brazilian government has shown its openness to greater foreign investment in rural land.24

But, what makes a land acquisition a land grab? As OXFAM holds, large-scale land acquisitions can be defined “the acquisition of any tract of land larger than 200 hectares (ha), or twice the median land-holding, according to the national context”.25 On the basis of Tirana Declaration principles,26 land acquisitions become land grabs when one or more of the following cases occur:

are present on the site of The Land Matrix: . The Land Matrix is a global and independent land monitoring initiative. Its goal is to facilitate an open development community of citizens, researchers, policy makers and technology specialists to promote transparency and accountability in decisions over land and investment. 23 World Bank, Rising Global Interest in Farmland. Can it Yield Sustainable and Equitable Benefits? (Washington, DC, 2011). 24 Coleman (2012), supra note 13. 25 “The 200 ha figure comes from the International Land Coalition’s definition of large-scale. Not only is 200 ha ten times the size of a typical small farm, but according to the latest FAO-led World Agricultural Census, it is also larger than the average land holding in all but three developing countries” (OXFAM, “Our Land, Our Lives”. Time Out on the Global Land Rush (2012), available at: ). 26 ILC, Tirana Declaration: Securing Land Access for the Poor in Times of Intensified Natural Resources Competition (Rome, 2011), available at: . This Declaration was endorsed by the ILC Assembly of Members on 27 May 2011.


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violate human rights, particularly the equal rights of women; flout the principle of free, prior and informed consent (FPIC),27 under which affected communities are informed about and are able to give or refuse consent to a project; are not based on a thorough assessment, or are in disregard of social, economic and environmental impacts, including the way they are gendered; avoid transparent contracts with clear and binding commitments on employment and benefit-sharing; eschew democratic planning, independent oversight and meaningful participation.

Borras28 argues that The phrase “global land grab” has become a catch-all to describe and analyze the current explosion of large scale (trans)national commercial land transactions. Around the world, there have been strong reactions from states, corporations, and civil society groups. Some see land grabs as a major threat to the lives and livelihoods of the rural poor, and so oppose such commercial land deals. Others see economic opportunity for the rural poor, although they are wary of corruption and negative consequences, and so call for improving land market governance. Of course, between these two positions is a range of intermediate views offered by other groups.

Land grabbing – even in the absence of forced evictions – denies land for local communities,29 destroys livelihoods, reduces the political space for peasantoriented agricultural policies and distorts markets toward increasingly 27 See the recent UN-REDD PROGRAMME, Guidelines on Free, Prior and Informed Consent (2011), available at: . The definitions build on the elements of a common understanding of FPIC endorsed by the UNPFII at its Fourth Session in 2005: Free refers to a consent given voluntarily and absent of “coercion, intimidation or manipulation”; Prior means “consent is sought sufficiently in advance of any authorization or commencement of activities”; Informed refers mainly to the nature of the engagement and type of information that should be provided prior to seeking consent and also as part of the ongoing consent process; Consent refers to the collective decision made by the rights-holders and reached through the customary decision-making processes of the affected peoples or communities. Consent must be sought and granted or withheld according to the unique formal or informal political-administrative dynamic of each community. 28 S. Borras Jr., R. Hall, I. Scoones, B. White, and W. Wolford, Towards a Better Understanding of Global Land Grabbing: An Editorial Introduction, 38 The Journal of Peasant Studies, no. 2 (2011), 210. 29 In the context of large-scale land transfer, and also according to the VGGT, local communities are made up of indigenous peoples and of other people (small-scale food producers, women, the most marginalized and vulnerable groups as small-scale fisherfolks, resettled communities, older women, widowed women and orphaned girls, nomadic pastoralists and


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concentrated agribusiness interests and global trade rather than toward sustainable small-scale production for local and national markets. Land grabbing will accelerate ecosystem destruction and the climate crisis because of the type of monoculture-oriented industrial agricultural production many of these “acquired” lands will be used for. Land grabbing goes beyond traditional North–South imperialist structures.30 It also causes a crisis in both rural and urban areas. Land is being grabbed in Asia, Africa, the Americas and Europe for industrial agriculture, mining, infrastructure projects, dams, tourism, conservation parks, industry, urban expansion and military purpose.31 Even market-based solutions to climate change (like vast biofuel plantations, forest carbon offset projects and production reconversion initiatives) are ensuring local communities alienation from their lands and natural resources. According to McMichael’s authoritative analysis32 The so-called “global land grab” continues the historic process of land enclosures described by Sir Thomas More in Utopia as “sheep eating men”, when English peasants were evicted from the commons to make room for private estates. Colonialism extended the enclosure movement as lands and habitats were commandeered for export monocultures and/or settled by colonists at the expense of indigenous peoples – a practice continued during the mid-twentieth landless people) with customary tenure systems that have traditionally used the land, fisheries, forests and natural resources in common. 30 Some specific issues are analyzed in F. Adornato, I diritti della terra, Agricoltura, Istituzioni, Mercati, no. 2 (2011), 115–122 [F. Adornato, Land Rights] and L. Paoloni, La “sottrazione” delle terre coltivabili ed il fenomeno del land grabbing, Rivista Diritto Agrario, no. 2 (2012), 281–299 [L. Paoloni, The “Subtraction” of Arable Land and the Phenomenon of Land Grabbing]. 31 A new Report by European Coordination Via Campesina and Handsoff the Land Network shows how land grabbing and access to land are a critical issue today in Europe: Land Concentration, Land Grabbing and People’s Struggles in Europe (April 2013), available at: . Another useful reference is APRODEV, Policy Brief: The Role of European Development Finance Institutions in Land Grabs (May 2013), available at: . 32 P. McMichael, Interpreting the Land Grab, Transnational Institute (2011), available at: . Furthermore he argues “That land grab is not new, and it is not a single phenomenon. It has multiple dimensions. It is the medium through which development agencies can renew their legitimacy via land “improvement” with codes of conduct ostensibly to protect inhabitants but practically to protect investments. It contributes to the investment portfolio of finance capital, restoring profits even as capitalism enters a profound crisis of political legitimacy, and energy and environmental limits. The land grab includes plans to incorporate southern peasants into the World Bank’s new initiative of “agriculture for development.” And it serves revenue interests of host states and the security interests of investing states-anticipating food, water and fuel shortages”.


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century development era as new states sought to secure national territory and export revenues. The subsequent neoliberal project of global development intensified market-driven enclosure for mineral and agro-exporting as indebted states submitted to structural adjustment. Now in the twenty-first century, enclosure by “land grabbing” is driven by a combination of the food, energy, climate and financial crises. With rising energy and food prices, land has become the object of speculative investment and a hedge against food and fuel supply shortfalls. For many investors, farmland acquisition – either through purchase or lease – offers a chance to profit from rising agricultural commodity prices. Such investors take a direct interest in farm production, typically on large plantation-like operations, with an eye to profiting from high prices for food, fiber and biofuel crops. Rising food prices have also encouraged governments of countries such as Saudi Arabia, South Korea and Egypt to lease huge tracts of land, mostly in Africa, as a means of securing food for their own populations. Producing food offshore allows capital-rich but land-poor countries to bypass volatile global food markets and guard against food riots and related political instability.33 Still other investors buy farmland as a form of speculative investment in rising global land prices. By leasing the land to individual or corporate farmers, investors gain a regular income stream on top of appreciating land values. These investors also acquire farmland as a low-risk hedge against inflation and other side effects of the global financial crisis. As with the rush to buy gold, farmland investment is seen as a safe harbor in stormy financial seas. In this framework, land is viewed by the market as a tradable commodity and a good refuge for excess capital. Investors, in effect, buy land at low prices and then sell them at high prices when the recession is over. This has led to a rush of speculative land purchases. The global land rush has attracted considerable attention from the media, civil society, international development agencies and governments. In its recent

33 HLPE, Land Tenure and International in Agriculture. A Report by The High Level Panel of Experts on Food Security and Nutrition of the Committee on World Food Security (Rome, 2011) available at: . The goal of the HLPE (High Level Panel of Experts) is to ensure the regular inclusion of advice based on scientific evidence and knowledge. It will also provide scientific and knowledge-based analysis and advice on policy-relevant issues and identify emerging trends. It will also help prioritize future actions and focus attention on key focal areas.


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report on the subject,34 the World Bank welcomes these developments as a source of much-needed investments in global agriculture and a way to bring new infrastructure, technological improvements and jobs to target countries. Some critics, on contrast, have denounced the deals as resource grabs that dispossess small-scale farmers and indigenous peoples, threaten food sovereignty and further degrade agro-ecosystems.35 These concerns are compounded by the fact that the mechanisms whereby these deals are negotiated, monitored and enforced often lack transparency.

3 Consultation process of the VGGT 3.1 The background of the VGGT The demand for an international instrument that is helpful in the fight for access to land by small-scale food producers has been the subject of peasant movements and civil society groups for decades. Starting in the nineties, several meetings took place to debate this issue and to carry on political initiatives for rural development and distribution of land. In this framework, the IPC, through its team actively involved in land question, in collaboration with Via Campesina’s Global Campaign for Agrarian Reform,36 reacted to FAO’s technical document on land conflicts. Resistance against land grabbing and the World Bank’s position gained momentum, while the World Bank pursuant to general Principle of Responsible Agricultural Investments37 tried to prevent such protests. 34 World Bank, Rising Global Interest in Farmland. Can it Yield Sustainable and Equitable Benefits? (Washington, DC, 2011). 35 E. Holt-Giménez, Land Grabs vs. Land Sovereignty, available at: . This paper has also explained the meaning of Land sovereignty as “the right of communities and peoples to sustainable, land-based livelihoods; their right to have a democratic say in its use and an equitable share in the stream of social, environmental and economic benefits of the land where they live”. 36 S. Borras Jr., La Vía Campesina and its Global Campaign for Agrarian Reform, 8 Journal of Agrarian Change, nos. 2 and 3 (2008), 258–289. La Vía Campesina has evolved as an international movement of poor peasants and small farmers from the global South and North. 37 According to the careful analysis of De Schutter (2011), supra note 7, PRAI is “a set of seven ‘Principles for Responsible Agricultural Investment that Respect Rights, Livelihood and Resources’ proposed by the Food and Agriculture Organization of the United Nations (FAO), the International Fund for Agricultural Development (IFAD), the United Nations Conference on Trade and Development (UNCTAD), and the World Bank Group. Currently, the principles proposed are that: (1) existing rights to land and associated natural resources are recognized


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In the meantime, the FAO-CFS was reformed and changed into an institution fostering global governance of food security policies. In this new role, the CFS was called to adopt decisions on access to land for small food producers and to build a link between food security and access to necessary resources to produce food. This is the cornerstone of food sovereignty strategy. To engage governments’ responsibility to elaborate a “soft law” tool, intergovernmental negotiations were necessary. So, an Intergovernmental Working Group38 was established and governments jointly negotiated in the CFS with its new rules. In 2010, the IGWG started its work. Meanwhile, intensive consultations were conducted by CSOs and social movements in many countries. Their deliberations were compiled in a sole document39 which evidenced the differences and, sometimes, the contrasts between different positions of small farm producers’ movements and organizations. At the end of this process, therefore, two different Guidelines on land tenure40 proposals were elaborated at the same time by FAO (as an intergovernmental technical body) and civil society. During IGWG’s first meeting, FAO’s draft of the Guidelines was accepted as a negotiation basis, while the civil society’s Guidelines would have been used as a counter-proposal during governments’ negotiations with representatives of small food producer

and respected; (2) investments do not jeopardize food security but rather strengthen it; (3) processes for accessing land and making associated investments are transparent, monitored, and ensure accountability by all stakeholders, thereby improving the business, legal and regulatory environment; (4) all those materially affected are consulted and agreements from consultations are recorded and enforced; (5) projects are economically viable, respect the rule of law, reflect industry best practice, and result in durable shared value; (6) investments generate desirable social and distributional impacts and do not increase vulnerability; (7) environmental impacts are quantified and measures are taken to encourage sustainable resource use while minimizing and mitigating negative impacts” (p. 254). As specified by the author “These Principles, often referred to as the ‘RAI (responsible agricultural investment) Principles’, were released initially on 25 January 2010. They were subsequently presented at the annual meeting of the World Bank held in Washington, DC, on 25–27 April 2010, and at a side-event to the Highlevel segment of the 65th General Assembly of the United Nations, on 24 September 2010” (note 4, p. 254). 38 Intergovernmental Working Group (IGWG) is a subsidiary body of the Committee on World Food Security (CFS), with the mandate to elaborate, with the participation of stakeholders and within a period of two years, a set of voluntary guidelines to support Members in the progressive realization of the right to adequate food (from the Report of the 123rd Session of the FAO Council-Rome, 28 October–1 November 2002, ). 39 Regarding the role played by this organism, useful references in Civil Society Organizations´ Proposals for the FAO Guidelines on Responsible Governance of Land and Natural Resources Tenure (FIAN International, Heidelberg, 2011) available at: . 40 About these two different proposals, ibid.


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organizations and other CSOs. The presence of small food producers and CSOs, as active and equal participants in the negotiation process, was crucial to get the agreements to have a real impact. To properly prepare the negotiations, CFS member States asked the High Level Panel of Experts (HLPE) of the CFS to express their view. The HLPE has clearly stated, in its second report,41 that large-scale investment in land is “damaging food security, incomes, livelihoods and environment for local people”. The HLPE called on governments to: recognize the right to FPIC in relation to the land and natural resources on which they depend for their livelihoods; secure access and use of lands for peasants, pastoralists, forest dwellers, fisher folk and indigenous peoples; undertake redistributive land policies in settings marked by inequality in land control and ownership; abolish targets and subsidies on biofuels; prioritize investment in the small farm sector and in alternative food systems that are socially inclusive as well as environmentally sustainable, using agro-ecological principles.

3.2 The human rights as the basis of the VGGT During the consultation process, the representatives of civil society, private sector, government institutions, academia and UN agencies attempted to define the principles that could lay the foundations of the VGGT. The declared aim of VGGT is to achieve “food security for all and support the progressive realization of the right to adequate food in the context of national food security” and to promote “responsible governance of tenure of land, fisheries and forests, with respect to all forms of tenure: public, private, communal, indigenous, customary, and informal”.42 These overall objectives are pursued relying on the fundamental human rights disciplined by several international conventions. The basic Convention 169 (particularly art. 13–16) on Indigenous and Tribal Peoples (1989) of the International Labor Organization (ILO) and the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW, particularly art. 14) of the UN General Assembly (1979) contain explicit references to land rights.43 41 HLPE (2011), supra note 33. 42 In these terms see: . 43 Conventions and treaties addressing these rights included the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the four Geneva Conventions and their two additional Protocols, the Convention on the Rights of the Child, the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), the Convention on Biological Diversity, the Core Labor Standards of the ILO, the International


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Voluntary or not, the VGGT are in fact rooted on international human rights directly or indirectly relevant in terms of access to and control over land, water, fisheries and forests. Moreover, rights to land, water and other natural resources are intimately connected to numerous economic, social and cultural rights, such as the right to adequate food, housing, health and work. Therefore, the VGGT as an international agreement must ensure the right of language comprehension to all the stakeholders when they introduce human rights concepts and to remind governments of their obligations in this regard. Access to water for drinking, food production and livestock tending, as well as to fisheries and forests for local populations, is absolutely crucial in the quest for hunger eradication. Furthermore, the use of land for productive purposes cannot be separated from the use of water (which should be considered to all the effects a natural resource) as investment in land is directly linked to the availability of water. The VGGT are based on a holistic approach that implies the acknowledgment of natural commons,44 their significance for the food and livelihood security of local users and communities,45 and their role in the conservation of terrestrial and aquatic biodiversity. The natural commons comprise farm/crop lands, wetlands, forests, woodlots, open pasture, grazing and range-lands, hill and mountain slopes, streams and rivers, ponds, lakes and other fresh water Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Likewise, all regional human rights treaties such as the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and People’s Rights, and the Arab Charter of Human Rights must shape the normative framework of the mentioned Guidelines. All these treaties and conventions are binding for ratifying States, which are required to incorporate their provisions into domestic law. 44 The commons includes natural resources or wealth that are collectively owned such as land, water, forests, atmosphere, and elements of the environment, and also public goods and services, knowledge, and political commons such as democracy. Its nurturance remains the responsibility of everyone for the survival of the planet in the present and for the future. This nurturance is rooted in the respect of all living cultures, values, and traditions that sustain the commons. And therefore, this responsibility calls for democratic governance and sustainable, inclusive, community stewardship. Every state must recognize communities’ right to self-governance of their commons and work for the protection and strengthening of the commons, including the promotion of collective rights to access, govern, regulate and manage the commons and support of community stewardship, including recognizing of customary institutions but also ensuring the respect of the rights of women. There are rights which precede and/ or are not dependent on government’s recognition but are derived from the community in which these rights operate. For more details, Ricoveri (2013), supra note 14. 45 De Schutter (2011), supra note 8, pp. 503–539, addresses in detail some questions regarding the rights of land users.


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bodies, fishing grounds, seas and oceans, coastlines, minerals, seeds and terrestrial and aquatic biodiversity. In every part of the world, agricultural, forest, fishing, coastal, pastoral, nomadic and indigenous communities have developed sophisticated systems of using, sharing, governing and regenerating their natural commons. These systems, often rooted in collective rights,46 have to be respected. They are essential dimensions of the cultural–political identities of individuals and communities, and decisive to their very survival.47 States are also required by human rights conventions to ensure that women have equal access to and control over all natural resources through collective or individual tenure systems. The VGGT clearly distinguish the respective roles of the State, the private sector and civil society, with special attention to the accountability of business enterprises. In that perspective, the Guidelines deal with issues of abuse by powerful non-state actors and the responsibilities of Transnational Companies (TNCs) and other enterprises. They emphasize States’ obligations to properly regulate the activities of TNCs and other commercial entities in order to prevent negative impacts on the realization and enjoyment of human rights related to land and other natural resources by workers, nomadic pastoralists/herders, artisanal and small-scale fisherfolks, indigenous peoples and peasants. The Guidelines also encourage the establishment of effective mechanisms that make TNCs and businesses legally accountable for losses and damages arising from violations and/or crimes they commit locally or internationally. The VGGT address the need for coherent spatial planning in terms of propoor and sustainable development. Spatial planning links national, regional and local land use planning and also combines different land uses such as infrastructure development, settlement, agriculture, water catchment protection, environmental protection and natural habitats. In the Guidelines, spatial planning must reflect the overall objectives of ecosystems protection, climate change mitigation (as well as adaptation to global warming) and so must explicitly aim to prioritize the needs of rural poor populations to negative impacts of incoherent spatial planning. The VGGT include provisions calling for policy coherence of all relevant policies having direct or indirect impacts on the access to natural resources, including biofuels, climate mitigation, trade and investment support policies. In

46 About these issues, see L. Paoloni, Diritti degli agricoltori e tutela della biodiversità (Torino: Giappichelli, 2005) (L. Paoloni, Farmers’ Rights and Protection of Biodiversity). 47 E. Ostrom, Governing the Commons (Cambridge: Cambridge University Press, 1990).


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that perspective, current policies48 that undermine this access should be properly reformed, following a process that involves the active consultation and participation of local communities. These policies include notably large-scale biofuels production, large-scale mining and energy production like exploitation of water resources for energy, tourism and development projects and unsustainable programs of carbon sequestration, which are some of the main factors that have contributed to the recent increase of the phenomenon of land grabbing in the context of the financial, food, climate and energy crises. Without a strong system of monitoring and evaluation, the VGGT will not achieve their objectives. The establishment of independent national and multiactor bodies to observe compliance should be encouraged. Regional and international institutions, especially International Financial Institutions (IFIs), must be required to incorporate the Guidelines in their operational policies and directives as a means to avoid supporting private or public projects, programs or measures that violate human rights. The VGGT should integrate strong provisions to promote their efficient implementation through participatory and transparent approaches at national level, as an integral component of States’ national strategies for the progressive realization of the Right to Food in order to improve consistency with the Voluntary Guidelines on the Right to Food.49

4 The content of the VGGT 4.1 The responsibility of the states The Zero Draft document was realized at the end of the consultation process. Subsequently the First Draft was the result of several proposals elaborated by public and private sectors, civil society and academia. Finally, the definitive

48 Useful references about these subjects in HLPE, Biofuels and Food Security. A Report by the High Level Panel of Experts on Food Security and Nutrition of the Committee on World Food Security (Rome, 2013), available at: . 49 Voluntary Guidelines, to support the progressive realization of the right to adequate food in the context of national food security, were adopted by the 127th Session of the FAO Council, November 2004. The complete text is available at: . About the some issues of Right to Food, see the recent analysis in L. Colombo and A. Onorati, Food. Riots and Rights (London: IIED, 2013).


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version of the Guidelines was prepared through intergovernmental negotiations led by CFS. As evinced from the above-mentioned framework, land grabbing is a crucial issue in the VGGT document. It was recognized that states have an important responsibility in this regard. By addressing the means for solving tenure disputes, ensuring judicial protection of tenure rights, the VGGT are essential for those whose tenure rights are violated. The aim is to protect local communities from land investments and fisheries and forest transactions that undermine their secure access to and control over land, fisheries and forests.50 First and foremost investments need to be encouraged by all CFS member States in order to strengthen tenure of small-scale food producers, with particular regard to women. Financial investments and human and scientific resources should be placed before by each State in order to assist smallholders, increase production, achieve the necessary scale to access local and regional markets, improve living conditions rather than addressing to acquisition of land, fisheries and forests and/or tenure rights. Furthermore, each State is responsible for the application of the precautionary principle and for the adequate safeguards on investments or other transactions, included the conversion of land, fisheries and forests used by local communities, families and individuals. A particular emphasis should be put on states’ responsibility to regulate investments, to ensure that they respect human rights, to promote food security and sustainable use of the environment, to strengthen – where relevant – reference to the FPIC for indigenous peoples. The VGGT should support legal recognition and safeguard of tenure rights and tenure governance systems of indigenous peoples and other customary communities that very often are not complied with. Many publicly owned lands, fisheries and forests are collectively used and governed as commons. Accessible to everyone, such commons are fundamental for the food and the livelihood security of local users and communities. They are essential to their cultural–political identities. It is vital that states recognize, restore and respect such commons and their related systems of governance. Each State should properly ensure the implementation of the Guidelines in order to enable the monitoring and improving of governance of tenure.

50 Farely Boly, Secretary general of Sexagon, a peasant organization in Mali, affirms: “The problem is obvious. Agribusiness projects such as the ones comprising thousands of hectares in the Office du Niger, Mali, do great harm and are profoundly illegitimate. We call on parliaments and national governments to immediately cease all massive land grabs current or future and return the plundered land.”, available at: .


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Furthermore, states’ responsibility should ensure the promotion and the implementation of the Guidelines in accordance with human rights norms and standards and as part of their efforts to realize the Right to Food. Other important tasks are: to build appropriate and inclusive platforms of dialogue at local, national, regional and global level in order to promote the implementation in keeping with the Final Declaration on the Convention on Agrarian Reform and Rural Development (ICARRD); to establish monitoring and accountability mechanisms through participatory and transparent approaches that include all relevant actors, with particular regard to women, affected constituencies and their organizations; to allocate sufficient resources to all relevant policies and programs; to ask for coherence of all policies having direct or indirect impact on access to land and other natural resources, including biofuels, climate mitigation, trade and investment support policies; to call on CFS to periodically monitor governance of tenure and to review the relevance and effectiveness of the VGGT.

4.2 Access and control of natural resources In the VGGT final document, it is possible to identify the elements that are most useful for social struggles in defense of access and control of natural resources for food production. Part 1 of the document (Preliminary) shows how the VGGT seek to improve governance of tenure of land, fisheries and forests. They do this for the benefit of all, with an emphasis on vulnerable and marginalized people, with the goals of food security and progressive realization of the right to adequate food, poverty eradication, sustainable livelihoods, social stability, housing security, rural development and environmental protection. All programs, policies and technical assistance of the VGGT should be consistent with the existing obligations under international law, explicitly mentioning the Universal Declaration of Human Rights. Part 2 (General matters) holds that non-state actors, including business enterprises, have the responsibility to respect human rights and legitimate tenure rights. Host states and home states of transnational corporations have the obligation to assure that no abuses of human rights and legitimate tenure rights take place. Some important principles of implementation as human dignity, non-discrimination, equity and justice, gender equality, holistic and sustainable approach with regard to the management of natural resources, consultation and participation are set too. They clearly state that the tenure of land, fisheries and forests is not a business matter but a fundamental right that must be recognized, respected and guaranteed.


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Among other principles of implementation (transparency, accountability and continuous improvement), the VGGT introduce the rule of law, or rather, a rule-based approach through laws that is widely publicized, equally enforced and independently adjudicated and that is consistent with its existing obligations under national and international law. Moreover, this part of the document emphasizes, with detailed provisions, a strong gender approach and strengthens the human rights standards about gender equality applied to the field of tenure. The principle of consultation and participation, eventually, establishes a general standard on a particularly relevant issue for non-indigenous groups, as indigenous peoples already have the principle of FPIC recognized in the UN Declaration on the Rights of Indigenous Peoples. Also tenure governance plays a crucial role. The VGGT indicate how states – in accordance with national legislation – should ensure a policy of respect and recognize legitimate tenure rights, including legitimate customary tenure rights that are not currently protected by law. Legal and organizational frameworks for tenure governance should reflect the social, cultural, economic and environmental significance of land, fisheries and forests, the interconnected relationships between land, fisheries and forests (and their uses) and establish an integrated approach to their administration. Part 3 (Legal recognition and allocation of tenure rights and duties) shows how states should recognize and protect publicly owned land, fisheries and forests and their related systems of collective use and management of what in some national contexts referred to as commons. Local communities that have traditionally used the land, fisheries and forests should receive due consideration in the reallocation of tenure rights. Policies should take into account the tenure rights of others and anyone who could be affected should be included in the consultation, participation and decision-making processes. At this stage, the document focuses on informal tenure. States should ensure that all actions regarding informal tenure are consistent with their existing obligations under national and international law and with due regard to voluntary commitments under applicable regional and international instruments. Subsequently, the document devotes particular attention to the situation of indigenous peoples and other communities with customary tenure systems, with special regard to the social, cultural, spiritual, economic, environmental and political value that land, fisheries and forests encase. Communities should be assisted – where necessary – to increase the capacity of their members to fully participate in decision-making and governance of their tenure systems in order to promote and provide


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equitable, secure and sustainable rights to their self-governed resources. Effective participation of all community members (including the vulnerable and marginalized ones) should be promoted through their local or traditional institutions in decisions regarding their tenure systems, including the case of collective tenure systems. Before any project gets started or before adopting and implementing legislative or administrative measures affecting the resources for which the communities hold rights, states and other parties should consult with indigenous peoples through their own representative institutions in an effective and meaningful way, in order to obtain their FPIC. They should moreover provide appropriate recognition and protection of the legitimate tenure rights of indigenous peoples and other communities with customary tenure systems and endeavor to prevent corruption. Such recognition should take into account the land, fisheries and forests that are used exclusively by a community and those that are shared. Information about this recognition should be publicized in accessible locations and in understandable and applicable languages. Where indigenous peoples and other communities with customary tenure systems have legitimate tenure rights to the ancestral lands on which they live, states should recognize and protect these rights preventing the inhabitants from being forcibly evicted. States should protect indigenous peoples and other communities with customary tenure systems against the unauthorized use of their land, fisheries and forests. Where a community does not object, states should assist to formally document and publicize information on the nature and location of land, fisheries and forests used and controlled by the community. Where tenure rights are formally documented, they should be recorded with other public, private and communal tenure rights to prevent competing claims. States should respect customary approaches to resolve tenure conflicts within communities for land, fisheries and forests that are used by more than one community, with the effort to strengthen or develop means of solving conflicts between communities. State and non-state actors should finally strive to provide technical and legal assistance to affected communities to participate in the development of tenure policies, laws and projects. Part 4 (Transfers and other changes to tenure rights and duties) is strictly connected with the above-mentioned indigenous peoples and other communities with customary tenure systems issue. This section points out how states have the duty to protect local communities, indigenous peoples and vulnerable groups from land speculation and land concentration and how they are responsible to regulate land markets to protect social, cultural and environmental values highlighting the importance of small-scale producers for national food security and social stability.


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5 Limitations of the VGGT It is evident that contemporary global land governance is at an embryonic stage, nevertheless the VGGT may provide the foundations for a progressive transnational framework on land tenure and rights issues. Although there is no reason to assume that future global land governance will certainly develop along this direction,51 it has been authoritatively affirmed that “[d]ue to the way it was established, its scope and substance, the Voluntary Guidelines currently offers the most up to date international standard for the analysis of land grabbing”.52 As can be seen in the present article, the text of the VGGT was agreed upon by governments and civil society according to an unprecedented process of consultation and negotiation. It was then unanimously adopted by the CFS Special Session of 11 May 2012. The VGGT have a legal and negotiated nature with global validity; they are clearly not a technical document. In order to reach consensus during the drafting process, it has at times been kept quite general and ambiguous aiming to accommodate conflicting views. For these reasons the document shows some limitations.

5.1 Water and natural resources Getting to the heart of the matter, a manifest limitation of the VGGT is the fact that they do not cover water. The preface in VGGT briefly mentions that States may take the VGGT into account in the responsible governance of other natural resources inextricably related to land, fisheries and forests, such as water and mineral resources. However, leaving out of the document the water matter may be considered a serious omission. Furthermore, the VGGT apply only to the issue of tenure and not to the use and management of natural resources. Certainly, tenure and use can be considered two different subjects; from the legal point of view, however, these two dimensions are closely linked in real life. Many problems related to the access 51 M.E. Margulis, N. McKeon, and S.M. Borras, Land Grabbing and Global Governance: Critical Perspectives, 10 Globalizations, no. 1 (2013), 1–23. 52 In this sense see J. von Bernstorff, The Problem of “Land Grabbing”, extract from J. von Bernstorff, Das Problem des “Land Grabbing” und die UN-Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (2012), available at: .


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and control of natural resources by small-scale food producers are connected to the issue of governance of land use and management. Regrettably, these last topics are only obliquely dealt with in a couple of paragraphs.

5.2 Consent and tenure rights The use of the principle of FPIC,53 addressed to local communities, could not be extended to non-indigenous social groups. CSOs defended its extension to all groups whose livelihoods depend on land, fisheries and forests. Nevertheless a general consultation and participation standard is guaranteed. The VGGT accept the large-scale transfer of tenure rights; this could become, in some situations, a form of land grabbing. Notwithstanding, the text contains several safeguards to control this eventuality and its impacts. Unfortunately, CSOs’ proposal to put a ban on land grabbing was not accepted in the latest version of the document. However, the safeguards featured in several sections of the final and official document could be tactically used at local/national levels to organize resistance.

5.3 Interpretation Another controversial issue is that the VGGT might be interpreted in different ways by different actors. For instance, when implementing the VGGT, each government and bilateral or international agency might find in the text useful references in order to create an agenda focusing on economic growth, land markets promotion and benefit of commercial interests. It was not possible to get the states to equally accept the creation of a strong mechanism to monitor the policies and actions of governments and international organizations with an impact on tenure. The CFS Bureau, together with the CFS Advisory Group,54

53 For more details see supra note 27. 54 The Bureau is the executive arm of the CFS. It is made up of a Chairperson and 12 member countries. The Advisory Group is made up of representatives from the five different categories of CFS Participants. These are: UN agencies and other UN bodies; Civil society and non-governmental organizations particularly organizations representing smallholder family farmers, fisherfolks, herders, landless, urban poor, agricultural and food workers, women, youth, consumers and indigenous people; International agricultural research institutions; International and regional financial institutions such as the World Bank, the International Monetary Fund, regional development banks and the World Trade Organization; Private sector associations and philanthropic foundations. The Advisory Group helps the Bureau advance the Committee’s objectives


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should report to CFS on the progress of the implementation of the VGGT, as well as evaluate their impact and their contribution to the improvement of tenure governance.

5.4 Codes of conduct There are different points of view about the limitations of the VGGT. Both the VGGT and the PRAI (Principles for Responsible Agricultural Investment55) are often qualified as “codes of conduct” (i.e. non-binding rules addressed to the states who can follow them or not) because of their feature and functions. Being both “codes of conduct”, however, does not imply that they are identifiable, as their intrinsic nature is different. According to Mulleta’s opinion56 both the VGGT and the PRAI “do not give rise to enforceable rights and responsibilities on actors involved in land deals”. Furthermore the scholar sustains that the practicability of most of the policy prescriptions is limited, as the VGGT and the PRAI are suggested by their topdown or state-centric disposition. Again Mulleta affirms – not quite realistically in our opinion – the necessity to enhance “the voice/agency power of the local poor as well as changing the existing socio-institutional power asymmetries, so that local communities can be more visible and their rules more applicable/ influential in negotiations”.57 We believe that the above-mentioned identification between the VGGT and the PRAI is questionable because it can lead, for instance, to active involvement of states in the invisibilization of local claims and facilitation of land deals further undermining the creditability of a state-centered regulatory regime in dealing with problems of land matters. Moreover, these contested principles are not based on human rights law and say nothing about accountability or binding legal instruments, being envisaged purely as intended for corporate self-regulation.

in particular to ensure linkages with different stakeholders at regional, sub-regional and local levels and to ensure an ongoing, two-way exchange of information. 55 See supra note 36. 56 F.F. Mulleta, A Critical Review of the World Bank, FAO and Rights-Based Guidelines on LargeScale Land Transfer (2012), available at: . 57 Ibid.


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6 The implementation of the VGGT 6.1 VGGT as a soft law instrument From a strictly legal point of view, the VGGT – important international governance instrument – are not mandatory. The VGGT are a significant tool of “soft law” and hence it is not a source of legally binding effects for every single State. The Intergovernmental Working Group58 at the FAO states that [t]he Vienna Convention on the Law of Treaties defines a treaty as “an international agreement concluded between States in written form and governed by international law…” [Art. 2(1)(a)]. In contrast, declarations, resolutions and other non-binding instruments may encompass strong political commitments or moral obligations, even though they are not legally binding. Non-binding instruments may serve the parties to a treaty to authoritatively interpret its terms, resolving any ambiguities that may exist. A non-binding instrument may also be adopted as a precursor to a treaty.

Accordingly “[t]he Voluntary Guidelines are not meant to be legally binding. However, they may have a strong recommendatory force for States that are already bound by provisions of international law, insofar as the Voluntary Guidelines provide interpretation of such legal norms and guidance for their implementation”. The “soft laws”, or lex ferenda instruments, which include declarations, basic principles, general observations, and so on, represent international commitments that are based on foregoing treaties and the world’s major legal systems. Among these, the above-mentioned UN Declaration on the Rights of Indigenous Peoples holds particular importance.59 It is claimed that soft law 58 Information Paper on Implications of the Voluntary Guidelines for Parties and Non-Parties to the International Covenant on Economic, Social and Cultural Rights (The Intergovernmental Working Group For the Elaboration of a Set of Voluntary Guidelines to Support the progressive Realization of the Right to Adequate Food in the Context of National Food Security. Rome, 2003), available at: . 59 This fundamental Declaration recognizes and commits States to protect indigenous peoples’ rights to land, territory, water, coastal bodies of water and other resources that they traditionally have possessed or occupied and used, and to maintain and strengthen a spiritual relationship with them. This recognition is coincident with many rulings in national, regional and global adjudication bodies. Equally important is the Declaration’s recognition of indigenous peoples’ right to govern their lands and territories with their own forms of land tenure systems and institutions. The Declaration also enshrines the right to determine and develop priorities and strategies for the development and use of their land, territory and other resources and, at the same time, establishes the principle of FPIC under which the States must obtain the indigenous people’s approval for any project affecting indigenous territory or resources. Other


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may impact on policy development and practice precisely by reason of its lack of legal effect – rather, because it exercises an informal ‘soft’ influence. According to common idea, soft laws are “rules of conduct that are laid down in instruments which have not been attributed legally binding force as such, but nevertheless may have certain (indirect) legal effects, and that are aimed and may produce practical effects”.60 In another opinion soft law is rules of conduct which find themselves on the legally non-binding level (in the sense of enforceable and sanctionable), but which according to their drafters have to be awarded a legal scope, that has to be specified at every turn and therefore do not show a uniform value of intensity with regard to their legal scope.61

In H. Hillgenberg’s view,62 the VGGT can be, to all the effects, considered “nontreaty agreements”. He holds that [a]ccordingly they are not regarded as substitutes for treaties, but as an independent instrument which can be used to regulate behavior in cases where, for various reasons, a treaty is not an option. However, these non-treaty agreements remain “closed” as long as they are not recognized in international law or in single states as a source of legal obligations. At any rate, their political function resembles that of treaties: non-treaty agreements, too, provide the parties to international arrangements with the power “to justify and persuade”.

relevant instruments of soft law include the UN Declaration on Social Progress and Development, the World Conference on Agrarian Reform and Rural Development and its Action Plan (better known as the Peasants’ Charter), the Declaration resulting from the International Conference on Agrarian Reform and Rural Development, the Code of Conduct for Responsible Fisheries, the Voluntary Guidelines to support the Progressive Realization of the Right to Adequate Food in the context of National Food Security, the UN Basic Principles and Guidelines on Development-based Evictions and Displacements, the Guiding Principles on Internal Displacement and the Pinheiro Principles on Housing and Property Restitution for Refugees and Displaced Persons, the Vancouver Declaration on Human Settlements, the Istanbul Declaration on Human Settlements, and the Habitat II Agenda. 60 L. Senden, Soft Law in European Community Law (Oxford: Hart Publishing, 2004), p. 112. 61 G. Borchardt and K. Wellens, Soft Law in European Community Law, 14 European Law Review, no. 5 (1989), 267–321. 62 H. Hillgenberg, A Fresh Look at Soft Law, 10 European Journal of International Law, no. 3 (1999), 499–515. He also remarks that “innumerable technical agreements, as well as documents of the highest political importance, declarations of intent, codes of conduct and guidelines demonstrate the increasing importance of agreements below the level of treaties”.


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6.2 Steps toward implementation of the VGGT In the present framework, it is evident that the VGGT are a flexible tool in achieving policy objectives. Indeed, states and other actors may undertake voluntarily to do what they are less willing to do if legally obligated. The voluntary nature of the VGGT also requires, as written in the official document (Part 7), the states to implement, monitor and evaluate their feasibility. To this regard, it has been stressed,63 [t]here are several ways of promoting this: first of all, awareness raising activities should disseminate information about the VGGT and their provisions in order to make them known among different key actors, e.g. policy makers, judges, civil society organizations, etc. In order to promote the Guidelines as a tool, material on how to use them has to be elaborated. Another step toward implementation of the Guidelines consists of national dialogues to discuss priorities for implementation.

A recent signal of the importance of the implementation process of the VGGT came from the 67th Session of the General Assembly of the United Nations.64 The Second Committee recommends to the General Assembly the adoption of the draft resolution on “Agriculture development and food security”. The draft resolution first “[r]ecognizes the important role and inclusive nature of the Committee on World Food Security as a key organ in addressing the issue of global food security, including in the context of the global partnership for food security” and then “[e]ncourages countries to give due consideration to implementing the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, 19 as endorsed by the Committee on World Food Security on 11 May 2012”. In the Global Forum for Food and Agriculture, during the 5th Berlin Summit, held in January 2013,65 the Agriculture Ministers have recognized the crucial role of sustainable agriculture in feeding global population and its link in the fight against hunger, malnutrition and poverty, especially in developing countries. They also stressed that investment in sustainable agriculture and rural development is essential to support the progressive realization of the right to adequate food. 63 P. Seufert and S. Monsalve Suárez (FIAN International), Monitoring the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests. A civil Society Perspective (Land Tenure Working Paper 22, FAO, 2012). 64 UN, General Assembly, Agriculture Development and Food Security. Report of the Second Committee, A/67/443, 17 December 2012. 65 At the Conference there were 80 participating countries (represented at governmental level) and international organizations (also with high-level representation).


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The Agricultural Ministers have recognized furthermore the importance of an environment enabled to increase and sustain responsible private investment in the agricultural sector, based on a legal framework, safeguarding the rights and interests of the states and their populations, with special attention to rural communities and rural people, including their tenure rights. They have also pointed out the importance of investment in public goods that can create appropriate conditions for farmers and other investors. In this general context, also considering the central role of farmers as investors in the agricultural sector, the Summit has committed to strengthen the skills and abilities of smallholder farmers to promote equitable access to natural resources and to support farmers in organizing themselves in order to create efficiencies and gains in productivity. It focused, in particular, on facilitating their access to capital and financial services, on furthering the transfer of technology and on providing information services. The Berlin Global Forum has acknowledged the large-scale investments’ opportunities when “the investors give priority to business models which include smallholder farmers in value chains, respect legitimate tenure rights for both women and men and all applicable laws, promote transparency and accountability in investments related to transactions in tenure rights over land and natural resources” as stated in the Summit’s final document. The most significant statement is the call on the parties to confirm their intention to implement the VGGT in accordance with national priorities and the call on business enterprises to comply with it domestically and abroad. The final call on all parties consists of further developing overall guidance for responsible investment by committing themselves to actively support the ongoing inclusive consultation process within the CFS to develop PRAI that will have a high degree of legitimacy and expedite the progressive realization of the right to adequate food. This specific commitment was remarked, during the Summit, by FAO Director-General, Josè Graziano da Silva, who verbatim affirmed that “at the global scale, the next step in improving governance will be the development of guidance for responsible agricultural investments. This is the next challenge for the Committee on World Food Security”.66 Another step toward the implementation of the VGGT has been performed by CSOs, supported by IPC, who participated in opening a process of coordination of strategies for the VGGT implementation at national level in Heidelberg (Germany). Some of the meeting topics were: update/exchange on what has 66 The text of this speech is available at: .


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been done since the adoption of the Guidelines; national and regional strategies for using the Guidelines; possible additional sources of funding (EU, FAO-OCP, IFAD and OHCHR)67; connection of the Guidelines to other processes/initiatives against land grabbing; mobilization against G8 New Alliance for Africa; strategies vis-à-vis World Bank, private sector and ILC.68 An interesting proposal was submitted by the IPC to the FAO Tenure Division for funding of capacity building materials on the VGGT produced directly by CSOs and social movements; it consists of the popular version of the VGGT, the capacity building manual for promoters and audiovisual materials. During the meeting, it has been also reconfirmed that implementation is the responsibility of the states. Therefore civil society will demand implementation but through regional and national platforms established along the principles defined in the VGGT. Recently, the G8 New Alliance has also claimed to implement the VGGT but its actual goals are not clear. The New Alliance, still in phase of legitimizing itself, links land, food and nutrition and favors corporations. It is phase two of the G8’s coordinated response to the global food crisis and intends to support national agricultural plans in developing countries. The New Alliance promotes a voluntary approach to regulate the corporate investment in land that it encourages. However, within each framework, the New Alliance partners confirm their “intention” to “take into account” of both, the VGGT and the PRAI. The PRAI, as is well known, were initiated by World Bank in 2009 and have been rejected by CFS because they were used to legitimize land grabbing. While the VGGT were adopted by CFS, after a three-year process of bottomup consultation, their effectiveness will depend entirely on how they are implemented. But the positions seem to be irreconcilable: social movements and the CSOs within the CFS ask the VGGT to be translated into binding national laws, whereas corporations aim it to remain voluntary references. GRAIN holds that the New Alliance purpose to implement both the VGGT and the PRAI through “pilot implementation programs” can hide the real intention of land grabbing.69

67 EU (European Union); FAO (Food and Agriculture Organization) and OCP (Office for Communication, Partnerships and Advocacy); IFAD (International Fund for Agricultural Development); OHCHR (Office of the United Nations High Commissioner for Human Rights). 68 International Land Coalition is a mixed platform of NGOs, IFIs, UN International Agencies seating in IFAD. 69 GRAIN, The G8 and Land Grabs in Africa (2013), available at: .


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7 Conclusions The final text of the Voluntary Guidelines, realized in three years of negotiations between 96 governments and Civil Society Organizations inside the CFS at United Nation Food and Agricultural Organization (FAO) headquarters, was formally endorsed on 11 May 2012. With regard to the adoption of the VGGT, the Special Rapporteur on the Right to Food affirms resolutely: “this marks a new era for international cooperation on land issues”.70 The VGGT anchor the land grabbing matter to the existing obligations of States under International Law, explicitly referring to the universal Declaration of Human Rights. Therefore, the VGGT are a first, essential step made in the long road ahead until people’s rights to land, fisheries and forests will be fully recognized and respected. Yet many more are needed to secure these rights. The VGGT – as a new instrument developed by the Committee on Food Security of FAO – rightly acknowledge the key role of women, peasant farmers, fishing communities, pastoralists and indigenous peoples. Nonetheless, they fall short on issues that are critical to the livelihood of small-scale food producers. The text is, at this moment, not strong enough in prioritizing the essential support to small-scale producers, who have the absolute priority if governments want to achieve sustainable development. The VGGT, because of several intrinsic inadequacies, fail to provide a sufficiently comprehensive set of rules to effectively counteract the widespread practice of grabbing of natural resources, such as land and water, which contributes to food insecurity, violation of human rights and environmental degradation. It is also disappointing that they do not include water as a landrelated resource. Representatives of small-scale food producers participated to have their say at all stages of negotiations, bringing their real life experience into the decisionmaking process. The process proved able to bring a wide range of voices to the debate, making it easier to find solutions to difficult and contentious issues,

70 “The Special Rapporteur commends the work of FAO on these Guidelines: FAO initiated them, led a long consultative process, and is now preparing their implementation at country level. FAO has also recently played an important role in the context of the CFS Open Ended Working Group on principles for responsible agricultural investments, which will enable CFS to take ownership of the matter” (O. De Shutter, available at: ).


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such as tenure of land, fisheries and forests according to a “bottom-up” participatory approach to set legal principles and rules.71 Although CSOs still disagree with several parts of the final text, they will work to ensure that the VGGT are implemented in a way that strengthens the rights of small-scale food producers and commit to use them as a tool to advance their struggles.72 CSOs call on governments and intergovernmental organizations to implement the Guidelines to effectively and urgently contribute to a sustainable and equitable governance of natural resources. Finally, it is essential to remark that land grabbing is only one of the main issues of land control in the world. The VGGT are a very important “soft law” tool that urges every State and international organizations to guarantee access to land for small food producers and to build a link between food security and the progressive realization of the right to adequate food.

References Adornato, F., I diritti della terra, Agricoltura, Istituzioni, Mercati, no. 2 [2011] [Adornato, F., Land Rights]. Alden Wily, L., Whose Land Is It? Commons and Conflict States (2008), available at: APRODEV, Policy Brief: The Role of European Development Finance Institutions in Land Grabs (May 2013), available at: Borchardt, G., and K. Wellens, Soft Law in European Community Law, 14 European Law Review, no. 5 (1989). Borras, Jr. S., La Vía Campesina and its Global Campaign for Agrarian Reform, 8 Journal of Agrarian Change (2008). Borras, Jr. S., R. Hall, I. Scoones, B. White, and W. Wolford, Towards a better understanding of global land grabbing: An editorial introduction, 38 The Journal of Peasant Studies, no. 2 (2011). 71 It has been conveniently remarked that “the participation of global civil society is more than token inclusion; global civil society at the CFS has been relatively successful in advancing its goals and articulating alternative policies that challenge the mainstream policies advanced by the G8 and World Bank. Indeed, the success by global social movements to position the Voluntary Guidelines as a wedge and counter-discourse against the earlier maneuver of the World Bank to place the Principles for Responsible Agricultural Investments (PRAI) – which is essentially a voluntary, corporate self-regulatory instrument – as the centrepiece to regulate land grabbing is indicative of the chessboard politics shaping emergent global land governance” (Margulis et al. (2013), supra note 51). 72 See the recent Document elaborated by Committee on World Food Security, Fortieth Session (Rome, Italy 7–11 October 2013), Following Progress on Decisions and Recommendations of the Committee on World Food Security (CFS), CFS 2013/40/Inf., 13, September 2013, available at: .


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Center for Human Rights and Global Justice (CHRGJ), Foreign Land Deals and Human Rights. Case Studies on Agricultural and Biofuel Investment (New York: NYU School of Law, 2010). Coleman, A.M., The Great Land Rush, available at: , accessed 13 September 2012. Colombo, L., and A. Onorati, Food. Riots and Rights (London: IIED, 2013). Committee on World Food Security, Fortieth Session (Rome, Italy 7–11 October 2013), Following Progress on Decisions and Recommendations of the Committee on World Food Security, CFS 2013/40/Inf., available at: , accessed 13 September 2013. De Schutter, O., Large-scale land acquisitions and leases: A set of core principles and measures to address the human rights challenge (2009), available at: De Schutter, O., How not to think of land-grabbing: three critiques of large-scale investments in farmland, 38 The Journal of Peasant Studies, no. 2 (2011). De Schutter, O., The Green Rush: The Global Race for Farmland and the Rights of Land Users, 52 Harvard International Law Journal, no. 2 (2011). European Commission (EC), EU Land Policy Guidelines (Brussels, 2004), available at: European Coordination via Campesina and Handsoff the Land Network, Land Concentration, Land Grabbing and People’s Struggles in Europe (April 2013), available at: FIAN, Civil Society Organizations’ Proposals for the FAO Guidelines on Responsible Governance of Land and Natural Resources Tenure (Heidelberg, 2011) available at: Glopolis, Why Does Responsible Investment in Agriculture Matter? (2013), available at: GRAIN, Seized! The 2008 Landgrab for Food and Financial Security, available at: GRAIN, The G8 and Land Grabs in Africa (2013), available at: HLPE, Land Tenure and International in Agriculture. A Report by the High Level Panel of Experts on Food Security and Nutrition of the Committee on World Food Security (Rome, 2011), available at: HLPE, Biofuels and Food Security. A Report by the High Level Panel of Experts on Food Security and Nutrition of the Committee on World Food Security (Rome, 2013), available at: Hillgenberg, H., A Fresh Look at Soft Law, 10 European Journal of International Law, no. 3 (1999). Holt-Giménez, E., Land Grabs vs. Land Sovereignty (2013), available at: ILC, Tirana Declaration: Securing Land Access for the Poor in Times of Intensified Natural Resources Competition (Rome, 2011), available at: Kugelman, M., “The Global Farmland Rush”, New York Times, Washington, 5 February 2013. Margulis, M.E., N. McKeon, and S.M. Borras Jr., Land Grabbing and Global Governance: Critical Perspectives, 10 Globalizations, no. 1 (2013).


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McMichael, P., Interpreting the Land Grab, Transnational Institute TNI (2011), available at: Mulleta, F.F., A Critical Review of the World Bank, FAO and Rights-Based Guidelines on LargeScale Land Transfer (2012), available at: Ostrom, E., Governing the Commons (Cambridge: Cambridge University Press, 1990). OXFAM, “Our Land, Our Lives”. Time Out on the Global Land Rush (2012), available at: Paoloni, L., Diritti degli agricoltori e tutela della biodiversità (Torino: Giappichelli, 2005) [Paoloni, L., Farmers’ Rights and Protection of Biodiversity]. Paoloni, L., La “sottrazione” delle terre coltivabili ed il fenomeno del land grabbing, Rivista Diritto Agrario, no. 2 (2012) [Paoloni, L., The “Subtraction” of Arable Land and the Phenomenon of Land Grabbing]. Peluso, N.L., and C. Lund, New Frontiers of Land Control: Introduction, 38 The Journal of Peasant Studies, no. 4 (2011). Ricoveri, G., Nature for Sale. The Commons Versus Commodities (London: Plutopress, 2013). Senden, L., Soft Law in European Community Law (Oxford: Hart Publishing, 2004). Seufert, P., and S. Monsalve Suárez (FIAN International), Monitoring the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests. A civil society perspective (Land Tenure Working Paper 22, FAO, 2012). Tal, A., and J.A. Cohen, Bringing “Top-Down” to “Bottom-Up”: A New Role for Environmental Legislation in Combating Desertification, 31 Harvard Environmental Law Review, no. 1 (2007). The Intergovernmental Working Group, Information Paper on Implications of the Voluntary Guidelines for Parties and Non-Parties to the International Covenant on Economic, Social and Cultural Right (Rome, 2003), available at: UN, General Assembly, Agriculture Development and Food Security. Report of the Second Committee, A/67/443, 17 December 2012. UN-REDD PROGRAMME, Guidelines on Free, Prior and Informed Consent (2011), available at: von Bernstorff, J., The Problem of “Land Grabbing”, extract from J. von Bernstorff, Das Problem des “Land Grabbing” und die UN-Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (2012), available at: World Bank, Rising Global Interest in Farmland. Can It Yield Sustainable and Equitable Benefits? (Washington, DC, 2011).


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Article Fantu F. Mulleta*, Pierre Merlet and Johan Bastiaensen

Questioning the “Regulatory Approach” to Large-Scale Agricultural Land Transfers in Ethiopia: A Legal Pluralistic Perspective Abstract: Until now, most policy recommendations put forward to deal with the possible negative impacts of large-scale land acquisitions are either directed towards the legal recognition and formalization of land rights in order to secure the rights of historical land holders or the design and implementation of “voluntary” guidelines and codes of conduct that promote positive development outcomes of large-scale land investments. This paper argues that these types of recommendations tend to depoliticize the debate around access to land and natural resources, whether at local, national and international levels. This paper looks to bring this political dimension back by proposing an analytical framework in line with the legal pluralist tradition. From a legal pluralistic analysis of the process of land deals in Ethiopia, this paper finds out that socio-cultural identity and power structures, rather than market and regulatory failure alone, play a fundamental role in redirecting negotiations and determining losers and winners from such deals. With the above finding, this paper finally suggests that blueprint international standards or investment regulatory measures cannot be used as a panacea and that solutions need to be more profound than such conventional approach. Keywords: legal pluralism, large-scale agricultural land transfer, land tenure, Ethiopia, investment regulation, World Bank Principles for Responsible Agricultural Investment, FAO Voluntary Guidelines on the Responsible DOI 10.1515/ldr-2014-0016

*Corresponding author: Fantu F. Mulleta, School of Law, Addis Ababa University, Addis Ababa, Ethiopia, E-mail: [email protected] Pierre Merlet: E-mail: [email protected], Johan Bastiaensen: E-mail: [email protected], Institute of Development Policy and Management (IOB), University of Antwerp, Antwerp, Belgium


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1 Introduction One of the new realities of development is the expansion in large-scale transfer of rural land to investors – also referred to as “land grabbing”. According to the World Bank, over 56.6 million hectares of land had been globally transferred, more than 70% of which land is in Sub-Saharan Africa.1 The portal of Land Matrix shows information of worldwide transfers for 1,044 deals, representing 51.6 million hectares as of July 2013. Around 54% of these deals are located in Africa.2 A considerable number of such large-scale land transfers are concentrated in Sub-Saharan Africa including Ethiopia. According to recent reports, Ethiopia is in the front run of transferring large tracts of agricultural lands to investors through long-term lease agreements. Yet, there is no precise figure on how much land is transferred. A report by the Oakland Institute3 estimates the total land transferred by January 2011 at around 3.6 million hectares, involving 1,349 investors. The World Bank recorded land transferred during 2004–2009 and counted around 1.2 million hectares of land, transferred to 406 investors.4 The most recent figure presented by the Land Matrix mentions a land transfer of around 2,401,021 ha for 73 deals.5 The Ethiopian government strongly supports and plans to further expand such large-scale land transfers claiming that there is abundance of marginal or unused land especially in the Southern lowland part of the country.6 The late Prime Minister announced that over 4 million hectares of “unutilized” land are available for large-scale commercial farming.7 The trend so far reveals that most of the land transfers are concentrated in four Southern regions (Oromia, Benishangul Gumuz, SNNP and Gambella) where population density is relatively lower (Table 1 and Figure 1).

1 K. Deininger and D. Byerlee, Rising Global Interest in Farm Land: Can It Yield Sustainable and Equitable Benefits? (Washington, DC: The World Bank, 2011), p. 51 2 Land Matrix, available at: , accessed 2 August 2013. 3 The Oakland Institute, Understanding Land Investment Deals in Africa, Country Report: Ethiopia (Oakland, CA: The Oakland Institute, 2011a), p. 20. 4 Deininger and Byerlee (2011), supra note 1, pp. 58, 62, 156. 5 Land Matrix, supra note 2. 6 S. Daniel, The Role of the International Finance Corporation in Promoting Agricultural Investment and Large-Scale Land Acquisitions, paper presented at the International Conference on Global Land Grabbing (London, 2011), available at: , accessed 20 April 2013 7 E.N. Stebek, Between “Land Grabs” and Agricultural Investment: Land Rent Contracts with Foreign Investors and Ethiopia’s Normative Setting in Focus, 5 Mizan Law Review, no. 2 (2011), 175–214.


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Table 1: Regional distribution of land transfers Regions

Land in ha

Oromia Benishangul Gumuz SNNP Gambella Amhara Tirgay Afar Somali

1,319,214 635,831 470,287 256,000 175,000 46,105 11,000 6,052

Source: The Oakland Institute (2011a).

Figure 1: Major regions affected by land transfers


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Some argue that the main reason behind concentration of land transfers in the southern lowland areas is the historical domination of the Southern peoples by the North – what some scholars consider a reflection of the historical core– periphery power structure where the southern lowland population was subjected to extractive policy of the central power through the paying of tribute and taxes as well as raids for resources.8 The other reason suggested by some for the concentration of large-scale land transfers in few regions is the absence of formal land certification in all such regions except for Oromia and Southern Nations Nationalities and People.9 This is alleged to reduce the need for compensation payments since local users’ rights are not documented and therefore disregarded by the state,10 which considers itself to be the residual owner of such undocumented land. When looking into the use of the transferred land, agrofuel feedstocks and other exportable cash crops, including food, are in the lead.11 One can note a significant presence of investors from major food importing countries especially Saudi Arabia and Egypt who aim at the supply of food to their home markets. Also Indian firms are prominent in food production for their home as well as broader world food markets. These tendencies indicate that increased domestic food production will not automatically lead to increased food security in Ethiopia. This evidently raises questions about the ethical nature of the strategy, knowing that Ethiopia is one of the most food insecure countries and largest recipient of food aid in Africa. The current debate of large-scale agricultural land deals is mainly related to the economic benefits and challenges of such deals, as well as the ways in which states can maximize the benefits and mitigate the risks through regulations. International organizations, such as the World Bank and FAO, have played a key role in advancing such a regulatory approach through the formulation of international guidelines and policy prescriptions. Such an approach is, however, criticized for putting excessive focus on states as the main agent of change, thereby ignoring the role of other actors in re/directing the land deals. It is also 8 T. Lavers, Patterns of Agrarian Transformation in Ethiopia: State-Mediated Commercialization and the Land Grab, 39 Journal of Peasant Studies, no. 3–4 (2012b), 795–822, at 798. 9 Only four of the nine regions in the country have so far implemented the process of formalizing private land rights through certification. These regions are Amhara, Tigray, Oromia and Southern Nations Nationalities and Peoples (SNNP). See the Oakland Institute (2011a), supra note 3, p. 13. 10 Stebek (2011), supra note 7, p. 186. 11 W. Anseeuw, L.A. Wily, L. Cotula and M. Taylor, Land Rights and the Rush for Land: Findings of the Global Commercial Pressures on Land Research Project (Rome: International Land Coalition, 2012), p. 24, available at: , accessed 26 April 2013.


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criticized for paying too little attention to the local socio-institutional processes and contexts under which such large-scale land transfers are being implemented.12 In response to the move to regulate large-scale agricultural land transfers, several competing policy perspectives, including an agrarian political economy approach, a human rights-based approach and a legal pluralist approach, came into light each resensitizing the process of land deals, problems associated to it and the way forward from a different perspective.13 Indeed, while almost all the approaches have a similarity in recognizing the problematic nature of large-scale agricultural land transfers, each differ in the way they conceptualize the problems and try to scale-up the policy debate and responses. Using lenses of a legal pluralist approach, this paper analyzes and calls into question the assumptions and policy prescriptions of the regulatory approach to large-scale land transfers.

2 Re-conceptualizing issues around large-scale land transfers from a legal pluralistic approach 2.1 Legal pluralism: basic tenets In its early theoretical conception by Griffiths the term legal pluralism was defined as “the presence in a social field of more than one legal order”.14 Here, the notion of legal pluralism is founded on a recognition of multiplicity of “legal orders”, in its broader sense as “normative orders”, which are generated in multiple social fields/spaces where people interact and form social networks.15 These multiple social spaces which generate multiple legal orders may include the family, religious organizations, tribal or communal system, transnational or international community, and last but not least the state.16 The theory of legal pluralism recognizes not only the multiplicity of social spaces but also the fact that people belong to more than one of such social spaces, and thus are governed by multiple legal orders at the same time. 12 T.M. Li, Centering Labour in the Land Grabbing Debate, 38 Journal of Peasant Studies, no. 2 (2011), 281–298. 13 S.M. Borras and J.C. Franco, Global Land Grabbing and Trajectories of Agrarian Change: A Preliminary Analysis, 12 Journal of Agrarian Change, no. 1 (2012), 34–59. 14 J. Griffiths, What Is Legal Pluralism?, 24 Journal of Legal Pluralism (1986), 1–55, at 1. 15 S.F. Moore, Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study, 7 Law and Society Review, no. 1 (1973), 719–746. 16 R.S. Meinzen-Dick and R. Pradhan, Legal Pluralism and Dynamic Property Rights No. 22 (Washington, DC: IFPRI, 2002).


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Also, for legal pluralists, there is no strict hierarchical structure among the different social spaces. They coexist without subordination but rather interaction between the different actors within.17 Accordingly, rules emanating from such multiple social spaces are also considered as not being subordinate of one another; and as such different rules can coexist at the same time even if they are in contradiction. Here, what really matters is the mobilization and recognition of a rule by members of relevant social spaces and not the concurrence with or recognition by another social space, like that of the state. This is in contrast to the approach of legal centralism wherein state law is regarded as the ultimate law or “ground norm” in governing human relations, and other rule-generating social spaces are considered of having “a lesser normative ordering” or “subordinate position” to that of the state.18 Here, uniformity of laws is deemed crucial and thus other forms of rules, for instance religious or customary rules, can exist if and only if they do not contradict but rather are incorporated into state law.19 Hence, rules are viewed as mutually exclusive20 wherein the state law is considered as the prime norm in play. The legal pluralistic approach views diverse social spaces not as simply autonomous, isolated or non-hierarchical but as mutually constructive, at times overlapping and semi-autonomous spaces.21 Such semi-autonomous social spaces influence (shape and reshape) each other through interaction and negotiation between social actors belonging to them. In the words of Moore “The semi-autonomous social field has rule-making capacities, and the means to induce or coerce compliance; but it is simultaneously set in a larger social matrix which can, and does, affect and invade it […]”.22 Hence, what is really important is neither the state law nor rules in other social spaces, but the norm that comes out of the interaction and negotiation on the ground – closely related to what different authors referred to as “rules in use”,23 “hybrid legal form”24 or “practical norms”.25

17 Moore (1973), supra note 15, p. 722. 18 Griffiths (1986), supra note 14, p. 3. 19 Ibid. 20 Meinzen-Dick and Pradhan (2002), supra note 16, p. 7. 21 Ibid. 22 Moore (1973), supra note 15, p. 720. 23 E. Ostrom and M. Cox, Moving Beyond Panaceas: A Multi-Tiered Diagnostic Approach for Social-Ecological Analysis, 37 Environmental Conservation, no. 4 (2010), 451–463. 24 F. Von Benda-Beckmenn and K. Von Benda-Beckmenn, The Dynamics of Change and Continuity in Plural Legal Orders, 53/54 Journal of Legal Pluralism (2006), 1–44. 25 J.P. Olivier de Sardan, Researching the Practical Norms of Real Governance in Africa No. 5 (London: Oversees Development Institute, 2008), p. 1.


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Such “practical norms” or “rules in use” may be more influenced by one legal order than another depending on the agenda setting power of actors in different social spaces. As norms are socially constructed, the ability of some actors in presenting their perspective or meaning system as the “only right perspective” affects the visibility of other perspectives or meaning systems. This is precisely stated by Meinzen-Dick and Pradhan as “laws are only as strong as the institution or collectivity that stands behind them”.26 Hence, the greater the agenda setting power of a certain group, for instance a state, the more visible and generally applicable its rules become. But it does not necessarily mean that the other rules and social orders will vanish or become “null and void” as what is considered by legal centralists; they will rather coexist perhaps with lesser visibility and influence. The visibility or degree of influence of different legal orders may be quite different at a certain point in time and will change with changes in social power of actors. Hence, the diverse legal orders operate in a continuously competing social network which renders rules anything but stable.27 Such openness to dynamism is one of the merits of a legal pluralist approach when dealing with complex social orders or socio-institutional processes which involve competition among “bundle of powers”.28 Hence, it is the legal centralistic conception of law as an “exclusive” and “coherent” piece of state rule that is mainly challenged under the legal pluralistic approach. Besides the role of non-state actors in manoeuvring states’ legal order, lack of homogeneity within the state itself is another factor that renders state laws far from a “coherent” piece of rule. Indeed, a state is constituted of several actors each having different, at times contradictory, agendas and interests – making states non-monolithic in character, and thereby importing struggles and negotiation within the social space of the state.29 Hence, the “rules in use” are also determined by such intra-state struggles and negotiations which involve power and exclusion within. Though the approach of legal pluralism is contextually applied under different disciplines, the core tenet remains the same – that neither the state is not the only source of law nor is it the only actor with the ability to enforce rules and 26 Meinzen-Dick and Pradhan (2002), supra note 16, p. 5. 27 J. Vanderlinden, Return to Legal Pluralism: Twenty Years Later, 28 Journal of Legal Pluralism (1989), 149–157. 28 S.M. Borras, R. Hall, I. Scoones, B. White and W. Wolford, Towards Better Understanding of Global Land Grabbing: An Editorial Introduction, 38 Journal of Peasant Studies, no. 2 (2011), 209–216. 29 J.S. Migdal, State in Society: Studying How States and Societies Transform and Constitute One Another (Cambridge: Cambridge University Press, 2001), p. 20.


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shape the social order. In the words of Vanderlinden, “it acknowledges the state’s incapacity to realize to the full its totalitarian ambition”.30 It in turn underlines the capability or agency power of non-state actors to generate rules in their respective social space; administer and enforce such rules; as well as influence or manoeuvre rules in other social spaces including that of the state. In recognition of the semi-autonomous nature of the different social spaces and their respective rules, the key focus of the legal pluralistic approach lays on the way in which different legal orders interact with each other and get moderated through negotiation. It also explores the ways in which individual actors, belonging to multiple social spaces and thus having multiple identities, employ their agency in strategically choosing among the diverse legal orders that better legitimize their claim – commonly referred to as “forum shopping”.31

2.2 Legal pluralism and land rights: points of intersection The legal pluralist conception of law as involving interaction and negotiation between multiple social actors belonging to different social spaces is a useful approach in the study of land rights from a socio-institutional perspective where land rights are nothing but social relations.32 Under this socio-institutional approach, land is seen as a space that hosts diverse natural resources, and land rights are broadly defined as “relations with other humans who might travel over this space or use its resources”.33 Hence, the study of land rights is neither limited to nor mainly about, who has a statutory right over a piece of land in a legal centralistic sense of it, but how competing claims of different actors are negotiated and exercised on the ground. Indeed, land has a multifunctional character in that it is not strictly speaking a single item that can be administered by a single norm.34 Rather land carries “bundle of resources” within it, including water, minerals, tree and soil, whose governance call for multiple norms and which in turn gives rise to multiple basis of claims. Land hosts not only multiple resources but also

30 Vanderlinden (1989), supra note 27, p. 153. 31 Meinzen-Dick and Pradhan (2002), supra note 16, p. 15. 32 M. Merlet, Land Policies and Agrarian Reforms (France: AGTER, 2007), available at: , accessed 26 April 2013. 33 Ibid., p. 8. 34 Meinzen-Dick and Pradhan (2002), supra note 16, p. 1.


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multiple rights which often do not belong to one person – what is commonly referred to as “bundle of rights”.35 Such multiple rights bring in multiple right holders in the social arena over land, each belonging to different social spaces and thus having a different base of claim. Emphasizing on the relational and non-exclusive aspect of land claims, Borras added “bundle of powers” in the characterization of land rights wherein elites, who do not necessarily have a legitimate right on the basis of any legal order, can have an “effective control” over land based on social power, and thus become one actor/claimant in the social relations over land.36 Such non-exclusive nature of land rights and resulting coexistence of multiple claimants over same land calls for the application of different rules and tenure system at the same time,37 rendering legal pluralism a useful approach to capture such plurality of regimes, rights and claimants.

2.3 A legal pluralistic view of the debates surrounding large-scale land transfers A legal pluralistic conception of rules and a close investigation of socio-institutional processes around land rights is crucial also in studying the current largescale transfer of agricultural land to investors. The initial debate was limited to its opportunities and challenges in terms of job creation, raising public revenue, export potential and other economic considerations,38 but has evolved into a debate about regulating large-scale land deals so as to maximize benefits and mitigate risks.39 The focus lays on which regulatory mechanisms render such deals a “responsible investment in agriculture” – whether to have domestic or international regulation on responsible investments; whether to design a standard lease agreement or negotiate

35 Merlet (2007), supra note 32, p. 8. 36 S.M. Borras, Pro-Poor Land Reform: A Critique (Ottawa, ON: The University of Ottawa Press, 2007), p. 25. 37 P. Merlet and J. Bastiaensen, Struggles Over Property Rights in the Context of Large Scale Transnational Land Acquisitions: Using Legal Pluralism to Re-Politicize The Debate (Antwerp: Institute of Development Policy and Management, 2011), p. 10. 38 L. Cotula, S. Vermeulen, R. Leonard and J. Keeley, Land Grab or Development Opportunity?: Agricultural Investment and International Land Deals in Africa (London/Rome: IIED/FAO/IFAD, 2009), pp. 5, 10. 39 K. Deininger and D. Byerlee, The Rise of Large Farms in Land Abundant Countries: Do They Have a Future? 40 World Development, no. 4 (2012), 712.


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terms on a case by case basis; and whether to focus on the role of corporate social responsibility.40 While part of the current debate still revolves around ways of regulating such large-scale land transfers, it has partly evolved into another stage with emerging criticism on such a “regulatory approach”.41 According to the critics, putting the whole emphasis on a regulatory approach and assuming that all the challenges related to large-scale land transfers will be addressed through state regulation is too simplistic for it ignores the fundamental point that land rights are not just legal but also social matters. It also disregards the fact that land rights involve multiple actors arguing their claims from multiple legal orders. Hence, the state’s legal order is just one part of the social relations over land, and thus its regulation is not a panacea to all land-related problems. Even if both the political economy and legal pluralistic approaches call for a broader perspective of looking into issues of large-scale land transfer, their approach is different but possibly complementary – the political economy approach focusing on the nature of (“exploitative” capitalist) institutions as the main determinant of outcomes, whereas the legal pluralistic approach paying greater attention to processes of interaction and negotiation within institutions, without adhering to a particular theory about the nature of institutions per se. Particularly in the context of current land deals, the political economy approach mainly focuses on institutional or structural outcomes of such land deals including capitalist penetration or transformation in agrarian and labour structure – “land grab-induced accumulation, differentiation and displacement/dispossession”,42 while the legal pluralistic approach takes an actororiented perspective whereby the focus lies on how structures can be manoeuvred and impacts moderated through negotiation and agency power of different actors. Rather than seeing the outcome of land deals as a direct/passive submission of local land rights, the legal pluralistic approach makes an in-depth exploration of the interface between land grab-induced structural pressures on the one hand and actors’ livelihood strategies on the other – focusing on agency in processes of negotiation or struggle between actors with competing claims, rights and discourses.

40 H. Liversage, Responding to “Land Grabbing” and Promoting Responsible Investment in Agriculture No. 2 (Rome: IFAD, 2011), p. 6. 41 Borras and Franco (2012), supra note 13, p. 55. 42 Borras and Franco (2012), supra note 13, p. 46


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3 A legal pluralistic view of large-scale agricultural land transfers in Ethiopia Unlike the usual commercial transfer of land for private investors, recent land transfers feature diverse actors belonging to different social spaces including the host state, investors of different origin, the local community, home states in case of foreign investment, and international financial institutions.43 All actors have different roles and interests; they use different discourses to legitimize their claim and try to shop around the different legal orders. This section aims to re/conceptualize recent land deals in Ethiopia from a legal pluralistic perspective by exploring the different claims and discourses of the diverse actors as well as the discursive struggle among such actors in advancing one’s meaning system. In the interest of space, the following discussion mainly focuses on three of the key actors – the host state, investors and local communities.

3.1 The state With its constitutionally vested power of ownership of all lands,44 the state in Ethiopia plays a central role in the administration of land. It is the statutory provider of any private or communal land right, and only very few cases of formal recognition of customary or local land administration systems exist. Moreover, the state is the only actor statutorily allowed to transfer land for investment holding,45 thus from a legal point of view it logically plays a key role in recent large-scale land deals. It is normally regional governments that have a constitutional power to administer land in their territory and therefore negotiate and decide on longterm investment transfers in Ethiopia. However, their constitutional power has been reduced as of 2009, with the creation of the federal land bank, a central authority that is entrusted to negotiate and sign lease agreements for rural lands beyond 5,000 hectares.46 This centralizes the administration of land transfer 43 L. Cotula, The Outlook on Farmland Acquisitions (Rome: International Land Coalition, 2011a), available at: , accessed 25 March 2013. 44 Constitution of the Federal Democratic Republic of Ethiopia (1994), Articles 40(3), 52(2) and 89(5). 45 Federal Democratic Republic of Ethiopia Rural Land Administration and Use Proclamation (2005) 46 F. Makki, Power and Property: Commercialization, Enclosures, and the Transformation of Agrarian Relations in Ethiopia, 39 Journal of Peasant Studies, no. 1 (2012), 93.


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away from the local level. It also creates a dual land administration system (for transfer of land below and above 5,000 hectares respectively) wherein rules and practices are not necessarily coherent. In any case, land deals are negotiated and signed in a very state-centric manner whereby either tier of the government present itself as a party having full ownership and property rights of the land leased. Local people do not play any part in negotiating lease agreements.47 Like elsewhere, the Ethiopian state discursively justifies its policy with the argument that there is availability of huge unutilized land.48 This, however, is a widely contested claim as there is a general tendency to consider most nonagricultural or uncultivated land as “idle”, “marginal” or “vacant” land, even if other claims may exist over such land.49 This view disregards the multi-functional role of land for local people and represents a biased conception of land as a mere factor for agricultural production. Accordingly, several studies have found that most lands that are considered “vacant” and opened up for investment transfer have in fact been used for long by local people for diverse purposes including for grazing, as source of water, firewood, hunting and for spiritual purposes.50 Such fact is aptly put by one scholar stating “if land in Africa hasn’t been planted, it is probably for a reason. May be it’s used to graze livestock or deliberately left fallow to prevent nutrient depletion and erosion”.51 Land that is not used for settlement or crop production is lightly labelled as “unused” or “free of any claim”.52 This is a critical concern in the Ethiopian context wherein most of the land transfers are concentrated in the lowland part of the country where pastoralism and shifting cultivation dominate, obviously depending on land but not necessarily in the form of permanent cultivation. The disregard for this reality allows transfers to be carried out without even compensating local pastoralists who have been using the land for generations.53 47 L. Cotula, Land Deals in Africa: What Is in the Contracts? (London: International Institute for Environment and Development, 2011b), p. 2. 48 O. De Schutter, How Not to Think of Land-Grabbing: Three Critiques of Large-Scale Investments in Farmland, 38 Journal of Peasant Studies, no. 2 (2011), 249–279. 49 L.A. Wily, Nothing New Under the Sun or a New Battle Joined? The Political Economy of Agrarian Dispossession in the Current Global Land Rush, paper presented at the International Conference on Global Land Grabbing (London, 2011), available at: , accessed 25 April 2013. 50 K. Deininger, Challenges Posed by the New Wave of Farm Investment, 38 Journal of Peasant Studies, no. 2 (2011), 217–247. 51 Daniel (2011), supra note 6, p. 11. 52 Wily (2011), supra note 49, p. 5 53 Deininger and Byerlee (2011), supra note 1, p. 26.


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In fact, one of the core obligations of the state in most land lease agreements is to deliver the land “vacant” or “free of impediments”. Since most of the land that is labelled as “vacant” is actually exploited, the state has the task of “clearing” the land for delivery. Allegedly, one of the means used to clear the land is the forced relocation of people through the villagization program.54 The state justifies its villagization program arguing that it is “an effort to tackle poverty and ignorance”55 necessary to make public services, like education, health care and safe water, available to populations in remote areas. Villagization programs are, however, resisted by local communities because they are viewed as a threat to their pastoral way of life and tradition and an excuse to “clear” land for investment transfer.56 Given the incapacity of the state to deliver upon its promises of improved service delivery and infrastructure, the new settlements even threatened in their mere survival since their pastoral livelihoods are undermined.57 Yet, the state as a more powerful actor within discursive struggles around these issues largely manages to sell a positive image of the villagization programs. The state also legitimizes its control over large-scale land transfers by its statutory power to administer all lands, and more specifically its power to change communal lands into private holdings “as may be necessary”.58 The question remains however: necessary for whom? And who decides what is necessary? In the current process of land transfer, local people clearly have no/lesser influential say in negotiations and decision making,59 and their interest thus have little prospect of being respected. Indeed, more than a third of land expropriation cases in Ethiopia are destined for private projects rather than public investments60 – calling into question the role of the state as a promoter of public interest, rather expressing a common situation of state giving a 54 Villagization involves resettlement of people from one’s original land into other designated villages. See Makki (2012), supra note 46, p. 98. 55 A state official cited in Human Rights Watch, “Waiting Here for Death”: Forced Displacement and “Villagization” in Ethiopia’s Gambella Region (New York: Human Rights Watch, 2012a), p. 20. 56 D. Rahmato, Land to Investors: Large-Scale Land Transfers in Ethiopia (2011), p. 21, available at: , accessed 23 March 2013. 57 Human Rights Watch (2012a), supra note 55, pp. 3, 15. 58 Federal Democratic Republic of Ethiopia Rural Land Administration and Use Proclamation (2005), Article 5(3). 59 S. Vermeulen and L. Cotula, Over the Heads of Local People: Consultation, Consent, and Compromise in Large-Scale Land Deals for Biofuels Projects in Africa, 37 Journal of Peasant Studies, no. 4 (2010), 899–916. 60 Deininger and Byerlee (2011), supra note 1, p. 105.


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“helping hand to powerful private interests” despite its exclusionary impact on the general public.61

3.2 Investors Both domestic and foreign investors are involved in large-scale land transfers. While Ethiopian nationals living abroad and local elites in the country are main categories of domestic investors involved, foreign investors are predominantly from the Gulf States and India. Investors mostly base their claim on state laws and the international legal order. Especially foreign investors heavily rely on bilateral investment treaties (BITs) negotiated and signed between the host and their home state. This is because BITs are signed to protect and promote the interests of foreign investors and as such entitle investors with a better protection than domestic state rules. Most BITs are also characterized by unequal bargains between signatory states, resulting in terms that are more favourable for investors than the host countries and their impoverished population.62 Accordingly, foreign investors are often insulated from domestic regulatory power due to BIT protection against local content, employment or supply requirement, restrictions on free reparation of profit, and other host state requirements that discriminate between domestic and foreign investors.63 While this effectively hampers the regulatory capacity of host states, it also entitles investors with stronger rights/claims, enforceable in a different legal order than that of the domestic legal domain. Ethiopia has already signed BITs with most investor countries, including India, Egypt, China, Israel, Germany, US, UK and the Netherlands.64 This gives foreign investors the opportunity to shop around different legal orders at state and international level in asserting their rights. Investors also rely on land lease agreements to base and defend their claims. Such agreements are results of negotiation between investors and host states where investors, especially foreign, have a better bargaining power.65 This

61 J.P. Platteau (ed.), Institutions, Social Norms and Economic Development (Amsterdam: Oversees Publishers Association, 2002), p. 111. 62 Anseeuw et al. (2012), supra note 11, p. 53. 63 De Schutter (2011), supra note 48, p. 266. 64 Ethiopian Investment Agency, available at: , accessed 7 March 2013. 65 L. Cotula, Land Deals in Africa: What Is in the Contracts? (London: International Institute for Environment and Development, 2011b), p. 24.


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is evident from the lucrative deals offered to investors by developing countries desperately competing to attract foreign capital.66 Both the state and investors view land lease agreement as an important instrument to promote one’s interest, albeit in a very different way and on the basis of different discourse. For investors, land lease agreements are like any other commercial instruments which equally secure the rights of both contractual parties. In the words of one foreign investor in Ethiopia “our agreement with government is purely commercial. Government is charging us a rent […] what we choose to do on the land for our own commercial intent is our own business. There is no governance, no constraints”.67 However, the government views land lease agreements as a regulatory instrument to control the activities of investors and create safeguard mechanisms.68 Even if investors seem to mostly legitimize their investment claims using their agreement with the state (through BITs and lease agreements), and thus adhere to a legal centralist view, such agreements do not always represent a consensus between actors signing it. It is often the most powerful actor that defines and thus reaps most benefits from the rules. As we will indicate in our in-depth assessment of the BITs below, the terms and conditions of such agreements are clearly biased in favour of foreign investors and their home states.

3.3 Local communities As in most of Sub-Saharan Africa, local communities in Ethiopia heavily rely on their age-old customary land tenure system.69 This is particularly true in the southern lowland part of the country, where there is no formal land certification system and most of the large-scale land transfers are taking place. Private and communal land holdings for settlement, cultivation, grazing, water collection and other purposes is secured through a clan-based or tribal tenure system whose origin dates back to long before the incorporation of southern territories into the imperial rule, and which later coexisted with other tenure systems of the state.70 66 De Schutter (2011), supra note 48, p. 264. 67 The Oakland Institute (2011a), supra note 3, p. 30. 68 Lease agreements are referred by the late Prime Minister of the country as “agreements precisely designed to ensure positive results in terms of job creation, availability of foreign exchange and availability of various agricultural products in domestic markets” Interview, available at: , accessed 2 March 2013. 69 Wily (2011), supra note 49, p. 14. 70 The Oakland Institute (2011a), supra note 3, pp. 42, 13.


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Hence, most land statutorily considered “vacant” by the state, because it is not formally registered under private or communal holding nor seems to be actively used for cultivation, is not “free from local claims”. This makes the local community another key actor in large-scale land transfers, having a competing claim on those lands being transferred to investors either as a “legitimate” holder of the land through customary tenure or at least as a prior user. This also puts the local community in a (discursive) struggle with the state and investors on questions of who has a legitimate claim over the land and who decides on what is legitimate. Though of lesser capability to win most discursive struggles, local communities use their agency to change their livelihood strategies, coping with loss of the land and natural resources.71 However, such forced change of livelihood mostly comes along with anger and resentment. Given the constellation of power, local communities mostly express their resistance and frustration in indirect ways, including attacking investors or their workers,72 poaching farm products and destroying properties of investors – in line with what James Scott called the infrapolitics of the dominated.73 This indicates that the protection and enforcement of state-based property rights can get very costly when land allocation to investors is resisted and met with aggression by local people.74 This is why most investors have included a clause in their lease agreements obliging the state to assure peaceful possession of the land – “free of riots, disturbances and troubles”. With all this, there is a sufficient indication of the state-centric and less participatory nature of large-scale land transfer process in Ethiopia which indeed is a result of tiling of socio-institutional power more on the side of the state, wherein the state as a dominant and visible actor has managed to advance its meaning system on what a “vacant” land is and what is “necessary” for the public, while local communities with lesser visibility lack the agency and power to change such meaning system. A core problem is thus the asymmetry in socioinstitutional power structures and the invisibilization of local claims by more

71 See for example the case described in M. Fisseha, A Case Study of the Bechera Agricultural Development Project: Ethiopia (Rome: International Land Coalition, 2011), available at: , accessed 28 August 2012. 72 An example is the murder of five employees of a large investor mentioned in the media report available at , accessed 5 February 2013. 73 J.C. Scott, Domination and the Arts of Resistance: Hidden Transcripts (London: Yale University Press, 1990), p. 188. 74 Platteau (2002), supra note 61, Chapter 3.


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powerful actors (state and investors), with a resulting loss of access to land by local communities.

4 The “regulatory approach” to land deals: can it address challenges and effectively promote local interests? Preceding sections have highlighted the socio-institutional problems underlying the process of large-scale land transfer in Ethiopia. In order to face these and other problems, one policy response advanced is the adoption of a “regulatory” or “code of conduct” approach – an approach that calls for the introduction of multilevel regulatory frameworks. Such a regulatory approach is an extension of the long-established “middle path theory” on the administration of investments by multinational corporations wherein such investments are considered intrinsically good, provided that they are regulated through “codes of restrictive business practices” that maximize benefits and reduce risks associated to it – an approach favouring a mix of regulation and openness.75 Hence, the regulatory approach does not question the very existence of large-scale land transfers; it rather promotes its continued existence with a minimized risk – the main focus being governance of investment externalities as if recent land deals were like any other form of investment.76 Accordingly, many proponents of the regulatory approach consider large-scale agricultural land transfers as “an opportunity to overcome long term underinvestment in agriculture” which can be rendered both socially and environmentally sustainable through “guidelines or principles for good land governance and responsible investment in agriculture”.77 Von Braun and Meizen-Dick describe such largescale farm investments as a “necessity” for rural development which can be made “virtuous” through the use of codes of conduct and other policies aiming to seize the benefits and mitigate the challenges.78 In a similar vein, the World 75 M. Sornarajah, The International Law on Foreign Investment (2nd ed., New York: Cambridge University Press, 2004), p. 64. 76 S.M. Borras and J.C. Franco, Towards a Broader View of the Politics of Global Land Grab: Rethinking Land Issues, Reframing Resistance No. 001 (The Hague: ICAS, 2010), p. 7. 77 Liversage (2011), supra note 40, pp. 7–8. 78 J. Von Braun and R. Meinzen-Dick, Land Grabbing by Foreign Investors in Developing Countries: Risks and Opportunities (Washington, DC: IFPRI, 2009), p. 3.


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Bank has identified lack of strong legal and institutional frameworks in host countries as a key limitation in the “moving from challenges to opportunities”.79 In this perspective, several international guidelines have been developed, including the World Bank Principles for Responsible Agricultural Investment; the FAO Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests; as well as the Minimum Core Human Rights Principles of the UN Special Rapporteur on the Right to Food. Lately, however, the regulatory approach is facing criticism for being too shallow, misleading and impracticable. It is considered shallow because it tries to fix the superficial problems surrounding land deals like that of payment of lesser compensation, secrecy of deals and issues of corruption which, however, are only manifestations of the real problem underlying land deals – imbalance of social power and exclusion in land relations which allows commodification of land at the expense of the local poor. Hence, rather than diagnosing the disease, policy prescriptions of the regulatory approach only treat the symptom. Borras and Franco criticized the regulatory approach as a dangerous diversion of attention from “substance” (the central issue of power asymmetry in social relations as well as structural problems on the nature of investments) to “form” (superficial issues of investment governance like: lease of how many years?; compensation of what amount?; what form of commercial presence?; which modality of land transfer and others).80 According to Li, the regulatory approach “takes a complex political economy problem driven by unequal power, and parses it into components that can be addressed by technical means […] drawn primarily from the toolkit of ‘good governance’”.81 Indeed, the main focus of the regulatory approach lies with the technical procedure of land transfers, leaving underlying power structures out of the picture. The regulatory approach is also criticized for being misleading since it takes the prevailing imbalance in social power for granted, and the resulting local dispossession of land as “inevitable”.82 Hence, rather than looking for other more efficient and equitable modes of agricultural investment, the regulatory approach tries to make a quick fix to problems of land deals, which in effect legitimizes such deals despite their socially inequitable and structurally problematic character. Finally, the regulatory approach is criticized for being impracticable, especially when seen from a legal pluralistic perspective. This is because the central 79 Deininger and Byerlee (2011), supra note 1, p. Xiii. 80 Borras and Franco (2012), supra note 13, p. 55. 81 Li (2011), supra note 12, p. 292. 82 De Schutter (2011), supra note 48, p. 250.


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focus of the regulatory approach lies on state’s legislative innovation, and thereby underestimates the role of other actors in (re)shaping the institutional landscape around land deals. Also the assumption that the state is a neutral actor which always strives to harness social benefit is subject to contestation. As well elaborated in previous sections on Ethiopia, one of the underlying challenges of large-scale land transfers is the dominant presence of states in such transfers and invisibilization of local claims through operation of state’s power in different dimensions. As such, it becomes questionable whether the state can be a key agent of beneficial change. On the basis of this general background about the theoretical assumptions and flaws of the regulatory approach to land deals, the following sections explore some of the major global regulatory instruments which are trusted to redirect large-scale land transfer into a win–win outcome.

4.1 The World Bank Principles and international investment treaties The World Bank is a leading actor in the promotion of regulatory instruments. The World Bank Principles for Responsible Agricultural Investment (hereafter the World Bank Principles) are founded on the general assumption that “any land related investment” in developing countries is “desirable in principle” since such has been lacking in the past.83 Recent land deals are viewed as part of private investment in agriculture, and thus believed to enhance the transfer of technology, to create employment opportunities and facilitate market access for developing countries. While recognizing “risks”, “equally large opportunities” are underlined.84 A list of principles thus aims to strike a balance between opportunities and risks. The principles include: respecting existing land and resource rights of local people; strengthening food security; ensuring good governance in land transfers; holding consultation and participation; promoting responsible investment through respect for rule of law and best practices; as well as ensuring social and environmental sustainability of investments.85 Detailed policy

83 Principles for Responsible Agricultural Investment that Respects Rights, Livelihoods and Resources (2010), Paragraph 1. 84 Deininger and Byerlee (2011), supra note 1, p. 142. 85 Principles for Responsible Agricultural Investment that Respects Rights, Livelihoods and Resources (2010).


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prescriptions that are meant to enforce each principle are also formulated by the World Bank wherein states are entrusted to play a key role. While most of the policy prescriptions look quite sympathetic to interests of local communities, their realization on the ground is highly questionable because of the prevalence of competing international principles and state obligations, as well as due to the very nature and purpose of land transfers which run counter to the policy prescriptions. For instance, one of the policy prescriptions suggested is for host states to take into account the dietary preferences of local communities when admitting large-scale investments in farmland. This, however, is not compatible with the export-oriented nature of most large-scale agricultural investments with their primary interest in the supply of agrofuels and cash crops to foreign markets.86 This is particularly true in Ethiopia where a significant share of investments involve production of agrofuel crops, in particular non-edible jatropha.87 Moreover, the production of industrial and cash crops such as coffee, tea and horticulture take a considerable account of investments which do not match the dietary preference of local communities. Indeed, the Ethiopian state incentivizes and at times even pressurizes investors to produce exportable cash crops, in line with the policy to increase foreign exchange earnings and reduce balance of payments problems.88 In view of enhancing the social sustainability, the World Bank suggests designing domestic strategies that can ensure the materialization of host state benefits like that of local employment opportunities, transfer of technology, expansion of local public goods and others. From experiences so far, such socio-economic interests are mostly enforced through performance requirements on investors including local employment, local content, and technology transfer requirements.89 However, this runs counter to other international rules and norms including the two decade long World Bank Guideline on the Treatment of Foreign Direct Investment, the WTO agreement on Trade-related Investment Measures (TRIMs), and BITs. It is worth noting the existence of the World Bank guideline on the treatment of foreign investors, drafted in 1992, which propagates free admission of

86 B. White, S.M. Borras, R. Hall, I. Scoones and W. Wolford, The New Enclosures: Critical Perspectives on Corporate Land Deals, 39 Journal of Peasant Studies, no. 3–4 (2012), 634. 87 T. Lavers, Land Grab’ as Development Strategy?: The Political Economy of Agricultural Investment in Ethiopia, 39 Journal of Peasant Studies, no. 1 (2012a), 114. 88 Ibid., p. 121. 89 Sornarajah (2004), supra note 75, p. 105.


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investors without any prerequisite or performance requirements.90 These guidelines also call for autonomous use of domestic labour and goods markets by foreign investors with least intervention from host states. It is in fact within the working mandates of the World Bank group, especially the International Finance Corporation (IFC), Multilateral Investment Guarantee Agency (MIGA) and International Centre for Settlement of Investment Disputes (ICSID), to promote the corporate interests of foreign investors and facilitate their activities in host states. The Bank has long been one of the key advocates of the “classical theory” on foreign investment which regards multinational corporations as nothing but good to the economies of host countries, and thus calls for host state provision of utmost protection rather than restrictions on activities of such multinational corporations.91 Indeed, the 1992 World Bank Guideline on the Treatment of Foreign Direct Investment is a reflection of this stance. Particularly in the context of current land deals, some even blame the World Bank for “enabling” such transfers mainly through shaping/influencing the legislative environment of host states in a way that allows for the signing of “streamlined and lucrative investor contracts” rather than setting rigorous regulatory frameworks.92 This shows how the World Bank, just like states, is not a monolithic actor in the international arena, and that different groups within the World Bank propagate different policy stances. In addition to the World Bank, the WTO also sets international norms on the treatment of investors which again are biased towards the corporate interests of investors. Under the TRIMs Agreement of the WTO, states are required not to employ any regulatory measure that can have a trade restrictive effect, including measures of quantitative restriction on the importation or exportation of goods by investors.93 While this generally constrains the regulatory capacity of host states, including their ability to regulate land deals as suggested under the World Bank Principles, it supports the discourse base of inventors for freedom/autonomy of investment operations. One of the policy prescriptions of the World Bank is the design of strategies to tackle instability or shortage of food supply in local markets. Here the most commonly used safeguard strategy is the setting of local supply requirements or export restrictions on investors

90 World Bank Guidelines on the Treatment of Foreign Direct Investment (1992), paragraph 2.3. 91 Sornarajah (2004), supra note 75, p. 68. 92 The Oakland Institute, Understanding Land Investment Deals in Africa: The Role of the World Bank Group (2011b), available at: , accessed 13 March 2013. 93 Agreement on Trade-related Investment Measures (1994), Article 2.


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which, however, is prohibited under the TRIMs Agreement of the WTO except in times of food crisis. Although Ethiopia is not yet a full member to the WTO, and thus not currently bound by terms of the TRIMs Agreement, the BITs it has signed with several home countries of investors are even more constraining than the TRIMs Agreement. In almost all the BITs signed by Ethiopia, investors are entitled to “investment freedom” defined as a protection against host state intervention in the management, operation, maintenance, use and enjoyment of investments.94 This forms a key discourse base for investors in challenging regulatory interventions including requirements of local employment, local supply of outputs, technology transfer, provision of public goods and other prescriptions suggested under the World Bank Principles. In fact, most BITs signed by Ethiopia define expropriation of investment property very broadly to include any loss of investment interests as a result of state’s regulatory measure – what is commonly referred to as “indirect taking of investment property” or “regulatory taking”.95 Hence, the country holds a responsibility of paying compensation for any loss of corporate interests resulting from its application/enforcement of a regulatory measure, even if it is primarily meant to promote public interest. This is not a simple theoretical limitation to the regulatory capacity of Ethiopia as a host state, especially considering the fact that several other host states have been held liable in the past based on a similar clause.96 Most BITs signed by the government of Ethiopia also entitle multinational corporations with a treatment that is no less favourable than that provided for domestic investors in all aspects of investment undertakings including in the marketing of products outside the country. This makes it hardly possible for the country to regulate multinational corporations separately from small and medium sized domestic investors, for instance those engaged in large-scale agrofuel production, despite the difference in their welfare impact and the need for protection of infant local industries. In general, the World Bank Principles are neither coherent nor the only piece of international norms governing investments in farmland; other ideologically competing international norms also exist which entitle investors with a better base of claim and discourse against state’s regulatory measures – allowing investors to do forum shopping among the different international norms,

94 Reference made to BITs signed by the Government of Ethiopia. 95 Cotula (2011b), supra note 65, p. 39. 96 Sornarajah (2004), supra note 75, p. 374.


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while constraining applicability of the World Bank policy prescriptions towards a “win–win” regime.

4.2 FAO Voluntary Guidelines The Voluntary Guidelines on the Responsible Governance of Tenure, endorsed by the Committee on World Food Security in May 2012, is another recent initiative for the regulation of large-scale agricultural land transfers. They result from a series of multi-stakeholder consultations among regional and international organizations, civil society groups, private sector representatives and other actors. Unlike the World Bank Principles, the FAO Voluntary Guidelines take a “holistic approach” to land governance whereby land rights are characterized of being “inextricably linked with access to and management of other natural resources”.97 This is an important innovation as the loss of local land use rights brings a wide range of consequences in terms of loss of access to various other natural resources, including water, fisheries, forest woods and others, on which local livelihoods depend. The Guidelines start with an explicit recognition of the possible coexistence of different forms of tenure – statutory and customary, formal and informal – despite its prevalent non-recognition by states. They call for non-infringement of rights emanating from customary or informal tenure systems by states, which indeed is at the heart of the problem around land deals. However, similar to the World Bank Principles, the approach adopted in the policy prescriptions remains legally centralistic wherein states are regarded as key actors in the governance of land in general, and thus, in the move towards a responsible and efficient market transfer of land to investors. This can be inferred from the lesser attention paid to the role of non-state actors, including traditional institutions, in the local governance of land; while a long list of legislative innovations are suggested for states to carry out so as to bring a nondiscriminatory, equitable, sustainable, transparent and accountable market transfer of land rights to investors. Such an approach simplifies problems around land deals into a mere regulatory failure which thus is assumed to be within the regulatory control of states and less a socio-institutional issue. Accordingly, the Guideline entrusts states with a responsibility of reforming their legal and organizational frameworks and also devising their regulatory policy instruments in a way that 97 Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (2012), Preface.


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safeguards the land rights and food security concerns of local communities in the continued future of large-scale land transfers. The Guidelines also call on Transnational Corporations not to infringe or abuse the legitimate tenure rights of others, in particular local communities. However in the context of current land deals, investors mostly do not act with an intention of directly infringing/abusing the land rights of local people. They rather acquire a statutorily “legitimate” land rights from the state; exercising these rights does, however, often result in encroachment of land use rights of local people who have competing claims over the same land. Hence, at the heart of the problem is not a direct infringement of local land rights by investors, but misappreciation/invisibilization of local claims by the state, and thus transfer of lands which are being used by local communities to investors as if they are “free of any claim” – inevitably causing conflict of interests. Besides, the Voluntary Guidelines put strong emphasis on the need to keep consistency between indigenous rules on customary tenure and national state laws, as well as between state laws and the international law – a legal centralistic conception of consistency and hierarchical incorporation among rules in different social spaces. This does not, however, hold true in a legal pluralistic view of “rules in use” where lack of coherence and uniformity, leading to conflict and negotiation, exists not only between rules in different social spaces but also among rules emanating from the same social space. Hence, what is important in the context of land rights is to increase the visibility and negotiating capacity of weaker groups so that they can better influence negotiations and advance their meaning system, and not simply seek for an ideal conflict-free state of social relationship. Lastly, the Guidelines call on states to act in compliance with national and international laws while transferring land to investors. Yet, as repeatedly mentioned in this paper, laws are not always equitable in their own right; they are results of a political process and thus reflection of power asymmetry in socioinstitutional processes. Indeed, most states do not act in contravention of statutory laws when transferring land to investors; they rather make use of already existing laws which are biased against weak and socially excluded groups. As such, it is worth underlining that compliance with laws does not necessarily guarantee equity and social justice in practice.

4.3 Core principles and measures to address human rights challenges of large-scale land acquisitions Another international response to the challenges of large-scale land deals is the formulation of a set of core international principles by Oliver De Schutter,


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Special Rapporteur of the UN on the Right to Food. These principles are designed to develop a human rights–based approach to land deals.98 They are developed to improve upon the weaknesses of other regulatory frameworks, especially the World Bank Principles. To start with, it recognizes the pitfalls in the voluntary nature of the World Bank (and FAO) guidelines and recommends holding states responsible for their obligations under existing international human rights instruments which impose some level of state accountability.99 It calls on states to respect and fulfil their human rights obligations towards citizens, particularly those rights relevant to current land deals including, among others, the right to food, the right to development, the right to self-determination and exploitation of natural resources by local populations, the right of indigenous people over traditionally owned lands, as well as labour rights of agricultural workers. It also recognizes weaknesses of the World Bank and FAO guidelines in presenting blueprint policy prescriptions as measures sufficient to redirect largescale land transfers into a win-win outcome. As such, it suggests a list of guiding principles which are “minimum principles in the sense that a large-scale investment in land will not necessarily be justified even though it may comply with the various principles listed”.100 Hence, unlike the code of conduct approach of the World Bank and FAO, the human rights–based approach does not simplify problems into mere investment externalities which can be sufficiently addressed through state regulatory measures. It indeed goes beyond the superficial problems on the technicalities of land deals and touches on some intrinsic/structural problems on the nature and impact of large-scale investments in farmland. As rightly stated by De Schutter himself “it would be unjustified to seek to better regulate agreements on large-scale land acquisitions or leases without addressing also, as a matter of urgency, [the] circumstances which makes such agreements look like a desirable option”.101 However, such human rights–based approach shares some common flaws with the voluntary guidelines of the World Bank and FAO, especially when examined from a legal pluralistic perspective. The most important of such flaws are its purely rights-based legal orientation as well as its excessive focus on the state as a main actor responsible for social change.

98 De Schutter (2011), supra note 48, p. 268. 99 Ibid. 100 Ibid., p. 256. 101 Large-scale Land Acquisitions and Leases: A Set of Core Principles and Measures to Address the Human Rights Challenge (2009), Paragraph 6.


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As the name itself indicates, the human rights–based approach is a purely legal/state-based approach whose relevance in the context of current land deals can be put into question given the predominant operation of social power and negotiation, rather than that of legal entitlement, in the politics of land relations. Its relevance becomes more uncertain when looking at it from a socioinstitutional perspective in that “rights cannot be enforced so long as the fundamental inequalities [or power asymmetries] in which social relations are grounded remain intact”.102 Hence, a focus on legal rights does not fully touch the core socio-institutional or relational problems underlying land deals, and thus promises no fundamental change on its own – a call for restructuring in socio-institutional processes as a precondition for successful operationalization of legal entitlements of weaker groups. The other flaw of the human rights–based approach relates to its statecentric disposition wherein almost all of the prescribed principles call host states to take one or another measure to minimize the human rights challenges. As such, all the critics made about the practicability of a top-down or state-centred legislative engineering for social change also applies here. After all, the minimum human rights principles can be viewed of being another list of blueprint standards whose realization on the ground heavily depends on the political will and institutional capacity of host states. In the words of Li the minimum human rights principles are “still limited to a technical fix: [whose] tools are naming, shaming and enjoining relevant authorities to be proactive in the protection of rights… [which however] cannot change the political economic context that translates paper rights into real ones”.103 Indeed, most of the human rights principles and state measures suggested by De Schutter have already been covered under pre-existing and largely accepted international instruments, including the International Covenant on Economic, Social and Cultural Rights of the UN, whose realization on the ground is, however, a long-standing problem.

5 Concluding remarks Core problems around large-scale land transfers are more underlying than just market risks or implementation challenges. Some are partly structural in that

102 B. Cousins, Capitalism Obscured: The Limits of Law and Rights-Based Approach to Poverty Reduction and Development, 36 Journal of Peasant Studies, no. 4 (2009), 893–908, at 901–902. 103 Li (2011), supra note 12, p. 292.


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they are intrinsic to the very export-oriented, agrofuel-driven or speculative character of recent investments which are manifestations of commodification of land and a shift away from local to extra-territorial concerns. This is particularly the case in Ethiopia where most land transfers are destined for the production of either agrofuel feedstocks or exportable cash crops. Other problems underlying large-scale land deals are relational in character in that the land transfer process is dominated by a few actors which largely exclude local communities and renders their claims less visible in the negotiating arena. Particularly in Ethiopia, the state plays a hegemonic role in the governance of land in general and the transfer of rural land to investors in particular with its statutory ownership of all lands and other natural resources in the country. The state mainly relies on its laws in its conduct which give very limited and insecure land rights to pastoralists while empowering the state to convert communal lands into private holding on its discretion. The state also makes use of its discourse about “idle” or “unused” land whereby all land which is not actively being used for settled cultivation is easily labelled as “idle” and thus made available for investment transfer. This places pastoral communities, especially those in the southern lowland part of Ethiopia, in a vulnerable position with their customary land use rights falling short of state recognition, and thus exposing them to dispossession without consultation or compensation. It is such power- and discourse-based domination of the state in the process of effecting land transfers as well as the resulting invisibilization of local claims and loss of livelihoods which is the underlying relational problem around land deals in Ethiopia. In ordinary cases of investment, state regulatory frameworks play some undeniable role in controlling investment undertakings. However, recent land rushes cannot be equated with ordinary investments since such land rushes are driven by factors that are well-beyond conventional investment interests, such as extra-territorial food, energy and financial security concerns which are structurally disadvantageous to local interests. Addressing challenges of such land deals thus necessitates policy interventions which go beyond the traditional scheme of regulating investments through state legislations and corporate codes of conduct. Indeed, at the heart of the problem being loss of access to land and security of tenure by local communities, which is a social as much as a legal matter, state regulation cannot be used as a panacea. Also, active involvement of the state in legitimization of large-scale land transfers and invisibilization of local claims erodes the trust that the state alone can bring the necessary social change, which therefore reduces the credibility of a state-centred regulatory approach in effectively addressing challenges of land deals. From the analysis of the different international initiatives taken lately to regulate large-scale land transfers, this study concludes that almost all the principles


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and guidelines proposed so far are legally centralistic or state-centric in formulation whereby a list of blueprint standards are prescribed as a panacea, whose realization is made dependent on the willingness and capacity of states effecting such transfers. Realization of most of the policy prescriptions is also constrained by the prevalence of other ideologically competing principles in the international legal order – creating a room for manoeuvre and forum shopping in favour of investors. Indeed, neither the state nor international actors like that of the World Bank are monolithic in character, and thus rules emanating from any of them are neither coherent in their own right nor automatic determinants of social change on the ground. In general, although legal empowerment of local communities, through formalization of land tenure and state granting of other forms of entitlements, may be a useful step forward, it is by no means sufficient to effectively deal with underlying problems of recent land transfers resulting from unequal power and exclusion. Hence, what is more pressing than legal empowerment is the need for social empowerment – restructuring of the power balance in socio-institutional relations more in favour of local communities so that their claims become more visible in the negotiating arena. To this end, initiatives being taken by international development agents to address challenges of large-scale land transfer need to transcend well beyond the designing of blueprint standards. Such initiatives should rather try to identify and redress underlying socio-institutional forces which always put the poor at the losing end of the bargain. This includes enhancing the voice/agency power of the local poor as well as changing the existing socio-institutional power asymmetries, so that local communities can become more visible and their rules more applicable/influential in negotiations. Civil society organizations and the media can play a similar role in bringing to light the claims of local communities, and acting as watchdogs to state power. Further research is needed to more specifically understand the relational dynamics among the different actors around land deals and the rules in use on the ground, which is important to better answer key questions such as who wins and losses from the process of land deals and to come up with context-based and appropriate policy recommendations about the way to enhance effective agency and voice of local groups.

References Anseeuw, W., L.A. Wily, L. Cotula and M. Taylor, “Land Rights and the Rush for Land: Findings of the Global Commercial Pressures on Land Research Project”, Report, International Land Coalition (2012), available at: , accessed 26 August 2012.


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Borras, S.M., Pro-poor Land Reform: A Critique (Ottawa: The University of Ottawa Press, 2007). Borras, S.M. and J.C. Franco, Towards a Broader View of the Politics of Global Land Grab: Rethinking Land Issues, Reframing Resistance, Working Paper, Series No. 001 (The Hague: ICAS, 2010). Borras, S.M. and J.C. Franco, Global Land Grabbing and Trajectories of Agrarian Change: A Preliminary Analysis, 12 Journal of Agrarian Change, no. 1 (2012). Cotula, L., S. Vermeulen, R. Leonard and J. Keeley, Land Grab or Development Opportunity?: Agricultural Investment and International Land Deals in Africa (London/Rome: IIED/FAO/ IFAD, 2009). Cotula, L., “The Outlook on Farmland Acquisitions”, Report, International Land Coalition (2011a), available at: , accessed 25 August 2012. Cotula, L., Land Deals in Africa: What Is in the Contracts? (London: International Institute for Environment and Development, 2011b). Cotula, L., The International Political Economy of the Global Land Rush: A Critical Appraisal of Trends, Scale, Geography and Drivers, 39 Journal of Peasant Studies, no. 3–4 (2012). Cousins, B., Capitalism Obscured: The Limits of Law and Rights-Based Approach to Poverty Reduction and Development, 36 Journal of Peasant Studies, no. 4 (2009). Daniel, S.,“The Role of the International Finance Corporation in Promoting Agricultural Investment and Large-Scale Land Acquisitions”, Conference Paper, IDS (2011), available at: , accessed 28 August 2012. Deininger, K., Challenges Posed by the New Wave of Farm Investment, 38 Journal of Peasant Studies, no. 2 (2011). Deininger, K. and D. Byerlee, Rising Global Interest in Farm Land: Can It Yield Sustainable and Equitable Benefits? (Washington, DC: The World Bank, 2011). Deininger, K. and D. Byerlee, The Rise of Large Farms in Land Abundant Countries: Do They Have a Future? 40 World Development, no. 4 (2012). De Schutter, O., How Not to Think of Land-Grabbing: Three Critiques of Large-Scale Investments in Farmland, 38 Journal of Peasant Studies, no. 2 (2011). Fisseha, M., “A Case Study of the Bechera Agricultural Development Project: Ethiopia”, Report, International Land Coalition (2011), available at: , accessed 28 August 2012. Griffiths, J., What Is Legal Pluralism? 24 Journal of Legal Pluralism (1986). Human Rights Watch, “Waiting Here for Death”: Forced Displacement and “Villagization” in Ethiopia’s Gambella Region (New York: Human Rights Watch, 2012a). Lavers, T., Land Grab’ as Development Strategy?: The Political Economy of Agricultural Investment in Ethiopia, 39 Journal of Peasant Studies, no. 1 (2012a). Lavers, T., Patterns of Agrarian Transformation in Ethiopia: State-Mediated Commercialization and the “land grab”, 39 Journal of Peasant Studies, no. 3–4 (2012b). Li, T.M., Centering Labour in the Land Grabbing Debate, 38 Journal of Peasant Studies, no. 2 (2011). Liversage, H., Responding to “Land Grabbing” and Promoting Responsible Investment in Agriculture, Occasional Paper, No. 2 (Rome: IFAD, 2011). Makki, F., Power and Property: Commercialization, Enclosures, and the Transformation of Agrarian Relations in Ethiopia, 39 Journal of Peasant Studies, no. 1 (2012).


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Meinzen-Dick, R.S. and R. Pradhan, Legal Pluralism and Dynamic Property Rights, Working Paper, No. 22 (Washington, DC: IFPRI, 2002). Merlet, M.,“Land Policies and Agrarian Reforms”, Proposal Paper, AGTEG (2007), available at: , accessed 26 August 2012. Merlet, P. and J. Bastiaensen, Struggles over Property Rights in the Context of Large Scale Transnational Land Acquisitions: Using Legal Pluralism to Re-Politicize the Debate, Discussion Paper (Antwerp: IOB, 2011). Migdal, J.S., State in Society: Studying How States and Societies Transform and Constitute One Another (Cambridge: Cambridge University Press, 2001). Moore, S.F., Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study, 7 Law and Society Review, no. 1 (1973). Ostrom, E. and M. Cox, Moving Beyond Panaceas: A Multi-Tiered Diagnostic Approach for Social-Ecological Analysis, 37 Environmental Conservation, no. 4 (2010). Platteau, J.P., “Property Rights in Land: Part I and II”, in J.P. Platteau (ed.), Institutions, Social Norms and Economic Development (Amsterdam: Oversees Publishers Association, 2002). Rahmato, D., Land to Investors: Large-Scale Land Transfers in Ethiopia (2011), available at: , accessed 23 May 2012. Scott, J.C., Domination and the Arts of Resistance: Hidden Transcripts (London: Yale University Press, 1990). Sornarajah, M., The International Law on Foreign Investment (2nd ed., New York: Cambridge University Press, 2004). Stebek, E.N., Between “Land Grabs” and Agricultural Investment: Land Rent Contracts with Foreign Investors and Ethiopia’s normative Setting in Focus, 5 Mizan Law Review, no. 2 (2011). The Oakland Institute, Understanding Land Investment Deals in Africa, Country Report: Ethiopia (Oakland, CA: The Oakland Institute, 2011a). The Oakland Institute, “Understanding Land Investment Deals in Africa: The Role of the World Bank Group”, Land Deal Brief (2011b), available at: , accessed 31 July 2012. Vanderlinden, J., Return to Legal Pluralism: Twenty Years Later, 28 Journal of Legal Pluralism (1989). Vermeulen, S. and L. Cotula, Over the Heads of Local People: Consultation, Consent, and Compromise in Large-Scale Land Deals for Biofuels Projects in Africa, 37 Journal of Peasant Studies, no. 4 (2010). Von Benda-Beckmenn, F. and K. Von Benda-Beckmenn, The Dynamics of Change and Continuity in Plural Legal Orders, 53/54 Journal of Legal Pluralism (2006). Von Braun, J. and R. Meninzen-Dick, Land Grabbing by Foreign Investors in Developing Countries: Risks and Opportunities (IFPRI, 2009). White, B., S.M. Borras, R. Hall, I. Scoones and W. Wolford, The New Enclosures: Critical Perspectives on Corporate Land Deals, 39 Journal of Peasant Studies, no. 3–4 (2012). Wily, L.A.,“Nothing New Under the Sun or a New Battle Joined? The Political Economy of Agrarian Dispossession in the Current Global Land Rush”, Conference Paper, IDS (2011), available at: , accessed 28 August 2012.


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Legislations, agreements and guidelines Agreement on Trade-related Investment Measures (1994). Constitution of the Federal Democratic Republic of Ethiopia (1994). Federal Democratic Republic of Ethiopia Rural Land Administration and Use Proclamation (2005). Large-scale Land Acquisitions and Leases: A Set of Core Principles and Measures to Address the Human Rights Challenge (2009). Principles for Responsible Agricultural Investment that Respects Rights, Livelihoods and Resources (2010). Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (2012). World Bank Guidelines on the Treatment of Foreign Direct Investment (1992).



Article Michael Brüntrup*, Waltina Scheumann, Axel Berger, Lidija Christmann and Clara Brandi

What Can Be Expected from International Frameworks to Regulate Large-Scale Land and Water Acquisitions in Sub-Saharan Africa? Abstract: This paper explores the use of international governance frameworks as being one of the ways to regulate large-scale land acquisitions (LSLAs). LSLAs are currently flourishing in both developed and developing countries, in particular in the sub-Saharan Africa region. Although they can potentially have many positive impacts in rural areas, many LSLAs have been shown to mainly produce negative impacts in poor countries with weak national policy and institutional frameworks and poorly defined rights for rural people. To successfully regulate the occurrence of LSLAs and their impacts, it needs to be understood that LSLAs are more complex than they are usually portrayed as being. Some of the complexities pertain to water issues; provenience of investors; legality and legitimacy of acquisitions; as well as the diversity of actors and the people affected. Against this background, five international frameworks are looked at: human rights, voluntary international guidelines, international global water governance regimes and bi-/multilateral river treaties, and voluntary private standards and codes. The paper concludes that the frameworks reviewed provide valuable guidance regarding LSLAs, but no single approach can help in dealing with the multitude of actors, situations, and impacts of LSLAs. Even if they are considered collectively, they can tackle many but not all challenges. Yet, their

*Corresponding author: Michael Brüntrup, German Development Institute/Deutsches Institut für Entwicklungspolitik (DIE), Bonn, Germany, E-mail: [email protected] Waltina Scheumann: E-mail: [email protected], Axel Berger: E-mail: [email protected], German Development Institute/Deutsches Institut für Entwicklungspolitik (DIE), Bonn, Germany Lidija Christmann, Federal Ministry for Economic Cooperation and Development/ Bundesministerium für Wirtschaftliche Zusammenarbeit und Entwicklung (BMZ), Bonn, Germany, E-mail: [email protected] Clara Brandi, German Development Institute/Deutsches Institut für Entwicklungspolitik (DIE), Bonn, Germany, E-mail: [email protected]; [email protected]


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implementation could substantially improve the process and the impact of LSLAs, including their refusal. A key question is how these frameworks are deployed at the local level. Some rely on translation into national laws and on their implementation, others try to establish a direct linkage between the international and the local level. It is of great interest to study how international frameworks trickle down to local policy arenas, how they are used by stakeholders, and how they are finally shaping conflicts at the local level and affecting their results. In particular, their potential for empowering poor stakeholders should be of interest for research and development. Keywords: land and water acquisitions, international frameworks, sub-Sahara Africa DOI 10.1515/ldr-2014-0013

1 Introduction: large-scale land acquisitions and the call for regulatory approaches The current wave of large-scale land acquisitions (LSLAs) – appropriations of large tracts of land by grabbing, purchasing, or leasing it, or via other mechanisms – is being driven by many factors and actors. There is no doubt that LSLAs potentially have as many negative implications for the populations affected and for the societies as a whole – including impacts on poverty, food security, migration, security, conflict, and even state integrity – as they have positive ones.1 However, though initial reporting on LSLAs has been marked by activism rather than by methodological rigor,2 there is ample evidence to suggest that, in fact, the negative effects of LSLAs are overwhelming. Prominent scientific conferences on LSLAs (e.g. Futures Agriculture 2011 and 2012 conferences in Sussex3 and Cornell,4 and several annual World Bank land and poverty conferences in 1 E.g. M. Brüntrup, Detrimental Land Grabbing or Growth Poles? Determinants and Potential Development Effects of Foreign Direct Land Investments, 20 Technikfolgenabschätzung – Theorie und Praxis, no. 1 (2012), 28–37. 2 I. Scoones, R. Hall, S.M. Borras, B. White and W. Wolford, The Politics of Evidence: Methodologies for Understanding the Global Land Rush, 40 Journal of Peasant Studies, no. 3 (2013), 469–483. 3 , accessed 19 September 2013. 4 , accessed 19 September 2013.


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Washington, DC5) have assembled a massive number of negative cases and consequences of the observed acquisition practices. Nonetheless, there is some scattered evidence on the positive impacts of large longer-term investment schemes based on LSLAs.6 But even authors and organizations that have found, or defend, the potential positive effects7 underline that the current situation is alarming. Typical problems reported are that people are evicted from their lands; experience pressure and violence; lose their agriculture-based livelihoods or find them seriously threatened; lose access to water, pastures, and/or forests. They do not find alternatives, at least in the short term, because most investments only materialize slowly (if at all), and often do not create the kinds of jobs that could be performed by those households that are obliged to abandon their land. Individual compensation is not granted, is very low or is not paid; establishing adequate livelihood alternatives is often not feasible; the leasing and purchasing prices of land do not reflect its productive value for the farmers; and the prices do not consider the loss of benefits other than cropping, such as forest 5 The first broad attention to LSLAs was gained by the NGO GRAIN: GRAIN, Seized: The 2008 Landgrab for Food And Financial Security (October 2008), available at: , accessed 6 May 2013; much more evidence has been collected and presented since then, e.g. conference 2012 , accessed 19 September 2013, and conference 2013 , accessed 19 September 2013. 6 E.g. E.T. Kennedy, The Effects of Sugarcane Production on Food Security, Health, and Nutrition in Kenya: A Longitudinal Analysis (Washington, DC: IFPRI, 1989); N. McCulloch and M. Ota, Export Horticulture and Poverty in Kenya, Institute of Development Studies Working Paper 174 (Sussex, 2002); N. Minot and M. Ngigi, Are Horticultural Exports a Replicable Success Story? Evidence from Kenya and Côte d’Ivoire, Conferences Paper no. 7, presented at the InWEnt, IFPRI, NEPAD, CTA conference Successes in African Agriculture (Pretoria, 2003); M. Maertens and J.F. Swinnen, Trade, Standards, and Poverty: Evidence from Senegal, 37 World Development, no. 1 (2009); R. Herrmann, U. Grote and M. Brüntrup, Household Welfare Outcomes of Large-scale Agricultural Investments: Insights from Sugarcane Outgrower Schemes and Estate Employment in Malawi, paper presented at the Annual World Bank Conference on Land and Poverty (Washington, DC, 8–11 April 2013), available at: , accessed 6 May 2013. 7 E.g. K. Deininger and D. Byerlee, Rising Global Interest in Farmland: Can It Yield Sustainable and Equitable Benefits? (Washington, DC: World Bank, 2010); FAO, Trends and Impacts of Foreign Investment in Developing Country Agriculture – Evidence from Case Studies (Rome, 2013); C. Schaffnit-Chatterjee, Foreign Investment in Farmland. No Low-hanging Fruit, Deutsche Bank research (Frankfurt a. M., November 2012), available at: , accessed 9 February 2013.


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products, pasture, and water access. Access to remaining free lands can become more difficult if rural roads and pathways are interrupted or if distances are longer to the fields that farmers received as compensation. Promised social investments, such as in schools, public health, and infrastructure, are not realized, or only after long delays, depending on the profitability of the investment. If projects fail – and there is growing evidence that such failures are the norm rather than the exception – new problems arise: The people affected have to find new jobs; they might possibly have to return to agriculture; social projects are not continued; new investors may take over, resulting in considerable delays; and uncertainties develop regarding the rights to the abandoned land and other resources.8 Land redistribution may take place but opens up new opportunities for corruption and rent-seeking. In some cases, former customary land leased out to large investors is not returned to the communities but to the central government.9 All this happens not only in countries with weak land governance but also in countries that are supposed to have well-established land tenure systems (cf. Alden Wily, this issue). There is, thus, an urgent need to regulate such investments in a way that local people’s needs and rights are respected, including the right to refusal, renegotiation, or adjustment of land deals. In stipulating such a need, it must be acknowledged that there are many forms of LSLAs, and each is a very complex operation. As a result, LSLAs are much more diverse than they are usually portrayed as being in the media and in individual reports. Powerful but partly inaccurate narratives have been formulated that tend to focus on only a few aspects, thus ignoring the complexities and ambiguity of LSLAs. They lead to inadequate policy prescriptions for their control and thus need to be critically examined and re-designed to lead to more thorough and realistic analyses of the phenomenon and potential remedies.10

8 M. Richards, Social and Environmental Impacts of Agricultural Large-scale Land Acquisitions in Africa – With a Focus on West and Central Africa, Rights and Resources Initiative (Washington, DC, 2013). 9 Oxfam, Land and Power: The Growing Scandal Surrounding the New Wave of Investments in Land (Oxford, 2011); L. Cotula, The Great African Land Grab? Agricultural Investments and the Global Food System (London/New York: Zed Books, 2013); S. Vermeulen and L. Cotula, Over the Heads of Local People: Consultation, Consent, and Recompense in Large-scale Land Deals for Biofuels Projects in Africa, 37 The Journal of Peasant Studies, no. 4 (2010), 899–916; L. German, G. Schoneveld and E. Mwangi, Contemporary Processes of Large-scale Land Acquisition by Investors: Case Studies from sub-Saharan Africa, Occasional Paper 68 (Bogor/Indonesia: CIFOR, 2011); Richards (2013) supra note 8. 10 For similar prudential positions of influential scholars, compare e.g. Scoones et al. (2013) supra note 2; Cotula (2013) supra note 9.



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Before looking at these issues, a few words need to be said about the extent of the LSLA phenomenon – or better, the lack of knowledge about how it is actually spreading.11 Several significant attempts have been made to assess the dimensions of LSLAs.12 The figures on the land sizes involved differ widely – from about 30 million to more than 200 million hectares, with a median of about 50–60 million hectares. The most recent calculations of the Land Matrix database – which presents arguably the most systematic and neutral attempt to document LSLAs and has served as a database for many secondary research publications – show that there are about 32.9 million hectares for which a deal has been concluded in 828 cases, and 14 million hectares for which a deal is intended13; 71 deals involving 5.6 million hectares were found to have failed. The bulk of the LSLAs are for agriculture (25 million hectares), and regionally most of them target Africa (60%), more precisely sub-Saharan Africa. However, several attempts to use databases on LSLAs as the bases for case study selection have shown that very few projects have started to be implemented (i.e. clearing and cultivating the land) and that many investments have stopped but not (yet) been declared a failure – thereby rendering their futures to be uncertain.14 Older examples of large-scale farming show that it typically takes years or even decades to establish farms with a size of more than 1,000 hectares of arable land.15 Reliable indicators on more qualitative issues concerning land deals, such as affected or displaced people, contracts, crop production, and so forth, are even more scarce and unreliable.

11 The “hectares” debate has revealed more than other topics around LSLAs fundamental flaws of the current debate, compare Scoones et al. (2013) supra note 2; M. Edelman, Messy Hectares: Questions about the Epistemology of Land Grabbing Data, 40 Journal of Peasant Studies, no. 3 (2013), 485–501. 12 E.g. Land Matrix, available at: , accessed 19 September 2013; GRAIN, available at: , accessed 6 May 2013; C. Friis and A. Reenberg, Land Grab in Africa: Emerging Land System Drivers in a Teleconnected World, Global Land Project-International Project Office (GLP-IPO), GLP Report No. 1 (University of Copenhagen, 2010); Deininger and Byerlee (2010), supra note 7; Oxfam (2011) supra note 9. 13 Land Matrix, , accessed 19 September 2013; compare W. Anseeuw et al., Transnational Land Deals for Agriculture in the Global South, analytical report based on the Land Matrix Database (Bern/Montpellier/Hamburg: CDE/CIRAD/GIGA, 2012). 14 See for instance M. Brüntrup, M. Kaplan and E. van de Sand for Ghana (all German Development Institute, personal communication), Linda Engström for Tanzania (Swedish Environment Institute, personal communication), W. Anseeuw for Mozambique (CIRAD, personal communication). 15 Cotula (2013) supra note 9 for sugar plantations in Zambia; more generally Deininger and Byerlee (2010) supra note 7.


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The reported differences on LSLAs partially result from variations in methodology, such as the definition of “large”; the periods under consideration; whether only new acquisitions are covered; in which stage of a transfer the deals are; whether deals result in the acquisition of community and small farm land and/or also the transfer of large farms; whether documentation focuses on foreign and/or national investors, and the various types of investors; and whether they consider acquisitions only for farming, or also for mining, nature conservation, tourism, and carbon sequestration, for example. Most importantly, differences originate due to the sources of information used as well as their accuracy and quality. In most African countries, reliable data are not available because governments are not able, or do not record and report on LSLAs. Thus, assessments rely on media, crowd intelligence, sporadic statistics, and one-off surveys. Because the lack of reliable information applies to many issues, the knowledge gaps make it relatively easy to shape the interpretations and narratives about LSLAs in politically desirable ways, for example by exaggerating or trivializing land-grab statistics and using anecdotal evidence, an unbalanced selection of case studies and the arbitrary interpretation of partial data. Edelman16 talks of the risk of a “delegitimizing impact of making spurious claims.” The remainder of this paper is organized as follows: Section 2 presents complexities that are often overlooked or simplified in the international debate; Section 3 sketches out what international frameworks that were reviewed could contribute toward the regulation of LSLAs. Section 4 finally concludes by presenting our findings and points to policy implications.

2 Four major challenges for regulatory approaches to LSLAs Beyond the fact that there are serious developmental challenges concerning LSLAs – and that the knowledge base on LSLAs is unorganized and biased – some other proposals can be extracted from the literature that show how complex they actually are. In the following sub-sections, we discuss how these complexities prove to complicate any regulatory attempts. Without being exhaustive, we have carved out four major challenges for regulatory approaches to LSLAs.

16 Edelman (2013) supra note 12.



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2.1 Water issues associated with LSLAs “Behind every land grab is a water grab” argues a publication by one of the most active non-governmental organizations working on LSLAs.17 In fact, for agricultural purposes investors are looking for land that is either blessed with adequate rainfall (green water) or that has access to a water source for irrigation (blue water). Clearly, blue water is the hotter topic. Since only 2% of its water resources are used, the African continent has a huge “untapped potential” for irrigated agriculture.18 However, water is distributed very unevenly across the continent; locally, the situation may be very different and water might be a limited resource. Locally, impacts of new investments can affect land users (farmers) downstream, but also those who use water untied to land, such as fishermen and pastoralists. Despite the potentially severe consequences, not many deals have explicit waterrelated provisions.19 In addition, cumulative water extraction cannot be dealt with in individual deals: For instance, in Mali, the government has leased out more water than is available.20 Similarly, negative impacts from LSLAs are also feared in the Nile basin and in southern Africa. It is speculated that international tensions may rise due to water appropriations for large tracts of land acquired. Not surprisingly, the water community has termed the phenomenon “water grabbing.”21 Commercial farm operations may also spoil water quality, for instance, when drainage canals from irrigated fields transport effluents enriched with nutrients and other chemicals back to irrigation canals or to natural watercourses. And they can impair the quantity and quality of groundwater resources and affect users thereof. Although the issue is evident and briefly mentioned in many reports, it has only slowly been taken up in research.22 For regulation, it implies that more actors and additional institutions and organizations are – and have to be – involved than just the “land people.”

17 GRAIN, Squeezing Africa Dry – Behind Every Land Grab Is a Water Grab (Barcelona, June 2012), p. 3. 18 C. Smaller and H. Mann, A Thirst for Distant Lands: Foreign Investment in Agricultural Land and Water, Foreign Investment for Sustainable Development Program, International Institute for Sustainable Development (IISD) (Winnipeg, Canada, 2009). 19 L. Cotula, Land Deals in Africa: What Is in the Contracts? (London: IIED, 2011). 20 T. Hertzog et al., Ostrich-like Strategies in Sahelian Sands? Land and Water Grabbing in the Office du Niger, Mali, 5 Water Alternatives, no. 2 (2012), 304–321, at 314. 21 L. Mehta, G.J. Veldwisch and J. Franco, Introduction to the Special Issue: Water Grabbing? Focus on the (re)Appropriation of Finite Water Resources, 5 Water Alternatives, no. 2 (2012), 193–207. 22 F. Pearce, Splash and Grab: The Global Scramble for Water, New Scientist (4 March 2013), available at: , accessed 19 April 2013.


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2.2 Origin of investors: foreign or domestic? A strong focus on foreign investors is discernible in the international debate as well as in the data collected on LSLAs.23 However, a few rigorous and in-depth studies show that the share of national investors, both in terms of their number and the land acquired, might be much higher than that of international ones. For instance, Deininger and Byerlee24 find that national investors made up 49–97% of the totals in five countries with reasonable amounts of data available (Sudan, Nigeria, Cambodia, Mozambique, and Ethiopia); only one (Liberia, with a long history of LSLAs) showed a significantly lower total with 7%. A few sources with a specific focus on this issue confirm a strong presence of national investors; the land which they acquire is typically smaller in size.25 There may be linkages and overlap of national and international investors, for instance through the creation of local enterprises by international actors or joint ventures with nationals. Yet, international attention, databases, and research seem to neglect national investments, possibly due to the lack of data as well as for political reasons.26 The importance of the distinction between both types of investors for regulation is: that the political economy is strongly altered if local – not foreign – elites are to be regulated; that some instruments make strong distinctions between foreign and national investors; and that public attention will be markedly different – usually lower – for national investors, with the exception of a few (politically sensitive) cases, such as when high-level politicians and authorities are involved and when a free press or party politics take up cases.

23 E.g. L. Cotula et al., Land Grab or Development Opportunity? Agricultural Investment and International Land Deals in Africa (London/Rome: IIED/FAO/IFAD, 2009); J. von Braun and R.S. Meinzen-Dick, “Land Grabbing” by Foreign Investors in Developing Countries: Risks and Opportunities (Washington, DC: IFPRI, 2009); FAO, From Land Grab to Win-Win. Seizing the Opportunities of International Investments in Agriculture (Rome, 2009a); P. Burnod, M. Gingembre and R. Andrianirina, Competition over Authority and Access: International Land Deals in Madagascar, 44 Development and Change, no. 2 (2013), 357–379. 24 Deininger and Byerlee (2010), supra note 7. 25 T. Hilhorst, J. Nelen and N.Traoré, Agrarian Change below the Radar Screen: Rising Farmland Acquisitions by Domestic Investors in West Africa. Results from a Survey in Benin, Burkina Faso and Niger, unpublished paper by the Royal Tropical Institute and SNV (April 2011), p. 10, available at: , accessed 6 May 2013; Cotula et al. (2009), supra note 23; Cotula (2013) supra note 9. 26 Scoones et al. (2013) supra note 2. Dwyer states that “the currency of the phrase ‘the global land grab’ already testifies to civil society’s success in making transnational land access an explicitly political issue”, in M.B. Dwyer, Building the Politics Machine: Tools for ‘Resolving the Global Land Grab, 44 Development and Change, no. 2 (2013), 309–333, at 314.



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2.3 Grab or deal? Legality and legitimacy of LSLAs In many publications, the term “land (and water) grab” is used for LSLAs, insinuating an illegal act against the will of the present owners and/or users in any such deal. Apart from the obvious advantages of using the term for certain purposes, such as drawing public attention or scandalizing a specific deal or all such deals, closer scrutiny shows that any use of the term reveals a highly problematic area of LSLAs: To whom do the land and water use rights belong, and who governs them? More generally, what is legal, what is legitimate, what is just, and who decides on these questions? In many countries in sub-Saharan Africa, according to state law, land generally (more than 80%) belongs to the state (cf. Alden Wily, this issue), which has the authority to decide on the devolution of use rights and on the decision-making units (districts, local communities, traditional authorities, and individuals).27 In addition, there is a plethora of local, “traditional” rights that are not necessarily compatible with each other and that have evolved over time and under internal and external influences, for instance through population pressures, technology, religion, and migration. The economic efficiency as well as the social and political effects of these traditional systems under changing conditions are not necessarily satisfactory.28 On the other hand, state-led transformations of the systems are found to have been abused and often lead to – whether intended or unintended – negative or unsatisfactory outcomes.29 Beyond the problems within each legal realm – state and traditional, it can be stated that the interaction between both compounds the complexity of land governance. The interaction depends inter alia on power, information, and the value attributed to the resource.30 More concretely applied to LSLAs and their impacts, questions that arise include: Can states actually acquire land legitimately and reallocate it to 27 L. Alden Wily, Governance and Land Relations: A Review of Decentralisation of Land Administration and Management in Africa (London: IIED, 2003); W. Wolford et al., Governing Global Land Deals: The Role of the State in the Rush for Land, 44 Development and Change, no. 2 (2013). 28 J.P. Platteau, The Evolutionary Theory of Land Rights As Applied to Sub-Saharan Africa: A Critical Assessment, 27 Development and Change, no. 1 (2008), 29–86. 29 L. Alden Wily, Looking Back to See Forward: The Legal Niceties of Land Theft in Land Rushes, 39 Journal of Peasant Studies, nos. 3–4 (2012), 751–775; K. Deininger and G. Feder, Land Registration, Governance, and Development: Evidence and Implications for Policy, 24 The World Bank Research Observer, no. 2 (2009), 233–266; D.W. Bromley, Formalising Property Relations in the Developing World: The Wrong Prescription for the Wrong Malady, 26 Land Use Policy, no. 1 (2009), 20–27. 30 K. Askew, F. Maganga and R. Odgaard, Of Land and Legitimacy: A Tale of Two Lawsuits, Africa: 83 The Journal of the International African Institute, no. 1 (2013), 120–141.


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investors? Are the traditional chiefs the custodians of the land, or is it the community as a whole? Does legitimacy depend on the quality of governance, on justice, on socially acceptable impacts, on accountability, and on participation? Under what conditions are these criteria satisfied?

2.4 Diversity of local groups affected and their rights, including gender issues The previous point on the uncertain legality and legitimacy of ownership and governance of land tenure in rural areas directly leads to another difficulty in creating regulatory frameworks for LSLAs: Communities in rural areas are not homogeneous. Instead, there may be a dominating ethnic group with members having no equal rights and interests. Some people, particularly younger ones, may want to have formal jobs away from the farm, whereas others may prefer to remain independent. Larger farmers may want to produce via contract, and very small ones may not be able to benefit due to production constraints. Farmers may want to cooperate, whereas herders or fishers might only see disadvantages. Some minority and weaker actors within local communities tend to be marginalized in one and/or the other tenure system: livestock herders, particularly transhumant and nomadic ones; fishers; minority ethnic groups; migrant farm families (even after many generations); young people; and women. In LSLAs and investment projects, there are losers and winners. The environment as well as hunters and gatherers may suffer, but wage jobs (albeit of very diverging quality – from low-paid day labor to well-paid permanent white-collar and technical jobs) are created. Local economies may thrive after some years, with growth eventually trickling down, but again not everyone may profit, and immigrants might compete with the local population. Women may be marginalized under current conditions as well as by LSLAs and with regard to compensation.31 In many traditional societies, women have no equal rights to own, transfer, and inherit land. Often, they depend on their family, husband, and/or relatives to access land. On the other hand, they often have rights to access natural resources such as firewood, wild plants, forage, and fish. With the establishment of LSLAs, these resources often become

31 J. Chu, Gender and “Land Grabbing” in Sub-Saharan Africa: Women’s land rights and customary land tenure, 54 Development no. 1 (2011), 35–39; A. Hampel-Milagrosa and M. Brüntrup, Land Grabbing and its Gender Implications – What Do We Know So Far, presentation at the 2013 Law and Development Conference “Legal and Development Implications of International Land Acquisitions” (Kyoto, Japan, 31 May 2013).



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scarcer, and closed tracts of land may also cut them off physically from access to resources beyond the concessions. Large farms may also cut them off from water resources or render their access more difficult. Thereby women lose access to natural resources. When LSLAs restrict access to land, women are forced to forage through less fertile parts of the remaining land. On the other hand, they may also find jobs on the plantation, in the processing industry or in the thriving local economy by providing services in the food and retail sectors, for example. They could also profit through social projects such as the provision of better water supplies and health stations, which can be part of LSLAs contracts as compensatory measures. Children may get better schools. Whose rights and interests count more, and how are they balanced in case of conflicts (which will almost certainly arise)? The following section presents relevant international frameworks that are believed to contribute toward the better regulation of LSLAs. Some work by being adapted to national circumstances and by becoming part of national legislation; others directly interact with local actors and dispose of dispute settlements at the international level. One recurrent aspect of the review is to analyze how the complexities identified affect the performance of the frameworks.

3 International legal instruments relevant to LSLAs – scope, challenges, and limits In this section, we scrutinize the most important international legal frameworks relevant to LSLAs and briefly assess the opportunities they offer as well as their limitations. We give special regard to the consequences of the complexities and challenges described in Section 2 and to what such a broader understanding of LSLAs implies for the effectiveness of the frameworks. The relevant frameworks identified encompass human rights, voluntary international guidelines, international investment treaties, international global water governance regimes and bi-/multilateral river treaties, and voluntary private standards and codes. This list may not be exhaustive, concentrates on social (rather than environmental) regulations, and the voluntary private standards and codes in particular are, in reality, a broad bundle of instruments that can be very different in terms of scope of issues covered, ambitions, and the extent of countries and actors involved. We do consider World Bank and other public financial institution standards for private investor clients under private standards since they only apply to investors willing to accept them for getting


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funds for private investments. We do not consider conditionalities of World Bank and International Monetary Fund policy lending since they are rarely linked to land governance and only apply if policy lending is provided; we do also not consider binding World Trade Organization trade rules which would be treated under binding international treaties such as investment treaties. Also, environmental international treaties are not considered since they are less important for the land transactions per se but for business operations and related land use changes (which nevertheless have an impact on the investment and production model and, thus, profitability and indirectly on social and economic impacts). However, it is a first attempt to look at these issues in parallel with a common target and to assess their effectiveness in steering LSLAs in poor countries.

3.1 Human rights There are several human rights issues relevant to LSLAs: the right to development, to self-determination, to food, to water, to housing, the special rights of indigenous and tribal peoples, and labor rights, to name the most relevant ones.32 The human right to adequate food is probably the most fundamental of these rights. It has been recognized in different international instruments, most notably the Universal Declaration of Human Rights; the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All Forms of Discrimination Against Women; and the Convention on the Rights of the Child. The United Nation’s Special Rapporteur on the Right to Food, Olivier de Schutter, has characterized the effects of the right to food as follows: Under Article 11 of the ICESCR,33 every State is obliged to ensure for everyone under its jurisdiction access to the minimum essential food which is sufficient, nutritionally adequate and safe, to ensure their freedom from hunger. The obligations of the State are threefold: to respect, protect and fulfill the human right to food. The State is obliged to refrain from infringing on individuals’ and groups’ ability to feed themselves where such 32 O. de Schutter, Large-scale Land Acquisitions and Leases: A Set of Core Principles and Measures to Address the Human Rights Challenge (June 2009), available at: , accessed 9 February 2013. 33 The ICESCR has 160 signatory state parties and was adopted by the UN General Assembly in 1966 and entered into force in 1976. (United Nations, Treaty Series, vol. 993, p. 3, depositary notification C.N.781.2001.TREATIES-6 of 5 October 2001).



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an ability exists (respect) and to prevent others – in particular private actors such as firms – from encroaching on that ability (protect). Finally, the state is called upon to actively strengthen individuals’ ability to feed themselves (fulfill).34

De Schutter derives 11 principles from human rights obligations for LSLAs (see Box 1): Box 1: Principles derived from human rights for the regulation of LSLAs in poor countries 1. Land negotiations should be conducted in full transparency, and with the participation of the affected local communities. 2. Shifts in land use should have the free, prior and informed consent (FPIC) of the local communities concerned. Evictions should be allowed to occur only in the most exceptional circumstances and for a public welfare reason. 3. States should adopt legislation protecting local communities and specifying in detail the conditions according to which shifts in land use, or evictions, may take place, as well as the procedures to be followed, and assist communities in obtaining collective land rights. 4. Investment revenues should be used for the benefit of the local population, and contract farming arrangements may be preferable to long-term leases of land or land purchases. 5. Preference should be given to labor-intensive farming systems and production technologies, and labor contracts should provide for a minimum living wage. 6. The modes of agricultural production shall respect the environment, and shall not accelerate climate change, soil depletion, and the exhaustion of freshwater reserves, with a preference for low external input farming practices. 7. The obligations of the investor such as for land rents, labor creation and wages, contract farming arrangements and local value addition should be defined in clear terms, should be made enforceable with inclusion of pre-defined sanctions in cases of non-compliance and should be monitored. 8. Measures should be contractually fixed to prevent an increase of food insecurity for the local population, including through food production and local marketing. 9. Detailed impact assessments in accordance with the specified requirements should be conducted prior to the completion of the negotiations. 10. The special rights of indigenous peoples have to be respected. 11. Agricultural wage workers should be provided with adequate protection and their fundamental human and labor rights should be stipulated in legislation and enforced in practice, consistent with the applicable ILO instruments. Source: following de Schutter (2009, 13ff.).

Many of the adverse effects on food that result from the impacts of LSLAs similarly affect access to drinking water. The General Comment No. 15 of the ICESCR “entitles everyone to sufficient, safe, acceptable, physically accessible 34 De Schutter (2009), supra note 31, p. 1.


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and affordable water for personal and domestic uses.”35 In many cases, the right to water is as dependent on access to land as is the right to food; in other cases, land use changes and infrastructure establishment can modify water access indirectly. Women are particularly affected by water issues. An example of an alleged infringement is the land contract concluded between ADDAX Bioenergy and the government of Sierra Leone. It has been assumed that the contract may conflict with Sierra Leone’s Water Control and Supply Act of 1963, because it affects the water rights of the population living within the project area and in its vicinity.36 In the context of LSLAs, states should, in addition, be guided by the need to ensure the right to self-determination and the right to development of the local populations. The right is stipulated by both the International Covenant on Civil and Political Rights and the ICESCR. The right to self-determination is defined as the right of all peoples to freely dispose of their natural wealth and resources. Both covenants stipulate that no people may be deprived of their own means of subsistence. Furthermore, in concluding agreements on LSLAs, states should take into account the rights of current land users in the areas where the investment is made, as well as the rights of workers employed on the farms. Of particular relevance are the rights of indigenous peoples: The right to have access to land for indigenous peoples has been given specific forms of protection under international law: Articles 13–19 of the 1989 International Labour Organization (ILO) Convention (no. 169) concerning Indigenous and Tribal Peoples relate to land rights as well as Article 8 para. 2b) of the United Nations Declaration on the Rights of Indigenous Peoples. Perhaps most relevant in this context is the principle of free, prior, and informed consent.37 The responsibilities of private enterprises with regard to human rights have been clarified in recent years by the UN Human Rights Council.38 John Ruggie,

35 Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the ICESCR (General Comment 15: The Right to Water, arts. 11 and 12 of the International Covenant) (20 January 2003), at 2. 36 Sierra Leone Network on the Right to Food, Study Reveals Alarming Facts about Plantation of Addax Bioenergy in Sierra Leone (June 2011), available at: , accessed 21 April 2013. 37 Article 32 para. 2 provides that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.” 38 United Nations, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UN Document A/HRC/17/31 (March 2011).



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the Special Representative of the United Nations Secretary‐General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprise, notes that the corporate responsibility to respect human rights “has acquired near‐universal recognition by all stakeholders.”39 Thus, arguably, corporations are also obliged to protect fundamental human rights in an investment context.40 These principles are increasingly being taken up in national legislation and in fora such as the Organisation for Economic Co-operation and Development (OECD) and voluntary standards (see below). For the future it can be expected that international enterprises will increasingly be held accountable for their activities in third countries and also for those of their suppliers. Yet, it is also obvious that there are challenges linked to the implementation of human rights principles.41 However, human rights are a powerful mechanism for raising awareness about the concerns of the poor and underprivileged to contrast them with the vagaries of how the powerful uses law for their own interests. In relation to the four major challenges discussed in Section 2, international human rights law offers a suitable framework because it – applies to all signatory states; – has a high general acceptance; – provides the concepts of rights and obligations, as well as mechanisms for increased accountability and the rule of law; – gives voice to a wide array of relevant stakeholders and establishes principles that govern decision-making and implementation processes, such as participation, non-discrimination, transparency, and empowerment; – provides guidance to ensure that investment agreements contribute to the realization of human rights; – has – at least to some degree – an established monitoring and reporting system within the UN system.

39 U.N. Human Rights Council (HRC), Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Protect, Respect and Remedy: A Framework for Business and Human Rights, U.N. Doc. A/HRC/11/13/, 22 April 2009, para. 46. 40 J.L. Cernic, Corporate Human Rights Obligations under Stabilization Clauses, 11 German Law Journal, no. 2 (2010), 201–229, at 212. 41 See e.g. J. Donnelly, Universal Human Rights in Theory and Practice (2nd ed., Cornell University Press, 2003); E. Hafner-Burton and K. Tsutsui, Human Rights in a Globalizing World: The Paradox of Empty Promises, 110 American Journal of Sociology, no. 5 (2005), 1373–1411.


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Its limitations are that – legal protection is still undermined by national shortcomings in substantive rules and legal remedies; – bringing a complaint to an international human rights court is marred by practical difficulties linked to geographical, language, and monetary barriers.42

3.2 Voluntary international guidelines Under this term, we subsume guidelines that are agreed by member states under the umbrella of the United Nations. There are two sets of voluntary international guidelines that have been already developed with the United Nations and that have immediate relevance for LSLAs: the Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security (hereafter called VG Food) and the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (hereafter called VG Land). A third set of voluntary rules, the Responsible Agricultural Investments principles (RAI principles), is in preparation. All spell out in some detail the application of a human rights-based approach for LSLAs and subsequent productive investments. The VG Food “represent the first attempt by governments to interpret an economic, social and cultural right and to recommend actions to be undertaken for its realization.”43 The objective is to provide practical guidance for implementing the right to food.44 The VG Food take a broad view on food security, in line with the contemporary understanding that access to food is as important as – or more important than – the availability of food. It deals with different cross-cutting issues, for example, food safety, social security, education, markets, and food aid, from a human rights perspective. One section of the VG Food (notably para. 8) clearly emphasizes that access to land and other natural

42 L. Cotula, “‘Land Grabbing’ in the Shadow of the Law: Legal Frameworks Regulating the Global Land Rush”, in R. Rayfuse and N. Weisfelt (eds.), The Challenge of Food Security (Cheltenham: Edward Elgar, 2012), p. 255. 43 FAO, Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security (Rome, 2005), p. III. 44 Very useful for knowing how to implement the VG Food is the following tool developed by the Right to Food Unit of the FAO: FAO, Guide on Legislating for the Right to Food (Rome, 2009b).



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resources is a key ingredient of food security, particularly for rural populations. It stipulates that states should facilitate sustainable, non-discriminatory and secure access and utilization of resources consistent with their national law and with international law and protect the assets that are important for people’s livelihoods. States should respect and protect the rights of individuals with respect to resources such as land, water, forests, fisheries and livestock without any discrimination.45

Examples of land tenure regulations that are considered to already respect these principles to a large extent are the Tanzania Village Land Act of 1999 (cf. Alden Wily, this issue) and the Mozambique Land Law of 1997.46 The VG Land promote responsible governance of tenure with respect to all forms of tenure: public, private, communal, indigenous, customary, and informal. Although only one paragraph is explicitly devoted to investments in land (para. 20), and not even specifically to LSLAs, many of the provisions concern LSLAs indirectly. Politically, it was the spate of land grabbing that prompted the VG Land process, including the establishment of regional consultations early in 2009.47 The VG Land were officially endorsed by the Committee on World Food Security (CFS) on May 11, 2012.48 Since then, implementation has been encouraged by the G20, Rio þ 20, the United Nations General Assembly, and the Francophone Assembly of Parliamentarians. The VG Land are substantially based on the human rights agenda, with its “emphasis on vulnerable and marginalized people, with the goals of food security and progressive realization of the right to adequate food, poverty eradication, sustainable livelihoods, social stability, housing security, rural development, environmental protection and sustainable social and economic development.”49 The VG Land are applied to and combined with more technical issues such as land-transfer rules (markets, investments, consolidation, restitution, and re-distributional reforms) and land administration (record-keeping, valuation, taxation, special planning, resolution, and transboundary matters),

45 FAO (2005), supra note 42, p. 16. 46 FAO (2009b), supra note 43, p. 208. 47 For a comprehensive overview of the history of the VG Land, see Paoloni and Onorati (this issue). 48 CFS (Committee on World Food Security), available at: , accessed 6 May 2013. 49 FAO, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (Rome, 2012a), p. 1.


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most of which matter for LSLAs. In its paragraph on investments, the VG Land stipulate many of the principles already listed by de Schutter (see Box 150 and compare Box 2). The VG Land also recognize land taxation as a legitimate revenue-generating tool for governments, and as a means to ward off mere land speculators. In order to prevent a “race to the bottom,” investment and land acquisition laws should be harmonized regionally. According to the VG Land, LSLAs should do no harm and should safeguard against dispossessions of tenure rights and livelihoods and against negative human rights impacts, food insecurity, and environmental damage. Investors should recognize when people who have to relinquish their tenure rights have less information and fewer negotiating skills. Investors should therefore ensure that all people affected are involved and informed and that there is active, free, effective, meaningful, and informed participation of individuals and groups in associated decision-making processes.51 However, the VG Land remain vague regarding water rights, and they mention water only in the preface without further specifications.52 Water had been proposed by the Food and Agriculture Organization of the United Nations (FAO) in the original title and had been included in earlier versions of the VG Land, but this brief reference in the preface of the final version was the only compromise that could be reached.53 Although civil society organizations and other actors such as the European Union were strongly in favor of including water in the guidelines, it was ultimately excluded. It would have required a whole new negotiation process, as it is a sensitive issue, and some countries, for example, Canada, firmly opposed the inclusion of water. Nevertheless, the VG Land provide a suitable basis also for water rights in many cases, because in most African countries, water rights are a subsidiary component of land rights, and the right to use water is tied to land.54 Through customary laws in Ghana,

50 De Schutter (2009), supra note 31. 51 See FAO, Governance of Land Tenure. Making It Happen (Rome, 2012b), p. 69. 52 “It is important to note that responsible governance of tenure of land, fisheries and forests is inextricably linked with access to and management of other natural resources, such as water and mineral resources. While recognizing the existence of different models and systems of governance of these natural resources under national contexts, States may wish to take the governance of these associated natural resources into account in their implementation of these Guidelines, as appropriate.” See FAO (2012a), supra note 47, p. 4. 53 According to interviews made with experts that were involved in the negotiation process of the VG, including members from BMZ, BMELV, GIZ, EED, and the German Institute for Human Rights. 54 S. Hodgson, Land and Water – The Rights Interface, LSP Working Paper 10 (Rome: FAO, 2004).



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for instance, water rights are vested in stools (i.e. local authorities), communities, and families,55 and similarly in Kenya and Tanzania, water tenure is vested in the local communities.56 In countries with a modern water rights system – where water rights are fully divorced from land rights, and where the state maintains control with complex regulatory administrative systems such as licenses, permissions, and concessions – the protection of water rights are vested in public administration mandates. In these cases, VG Land may be insufficient to guide LSLAs with regard to their water impact. In any case, without explicitly mentioning water rights issues in the VG, the topic risks being neglected in treaty-making and in practice. A new set of voluntary guidelines under the CFS on RAI principles is in the making. They are supposed to take into account issues of large (and small) agricultural investments other than land issues relating to LSLAs. The preliminary draft was issued in April 2013 and comprises 12 overall principles (see Box 2). Common language for the various issues is used from at least two dozen international treaties, which is expected to make them easier to negotiate and accept. The RAI principles are expected to be finalized in late 2014. Box 2: Preliminary principles for RAI 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

RAI enhance food security and nutrition for all. RAI are environmentally sustainable. RAI sustain or improve livelihoods and set in motion inclusive growth. RAI respect cultural norms, are compatible with universal human rights and are considered legitimate by relevant stakeholders. RAI are supported by enabling, facilitating and regulating structures based on internationally recognized good governance principles. RAI are supported by policies and legislation consistent with each other and address all aspects of responsible investment as described in this document. RAI that affect local communities require active, free, informed and effective participation of stakeholders. RAI are accompanied by mechanisms for regular review and improvement of agricultural investment-related governance instruments and policies. RAI are accompanied by non-discriminatory access to justice grievance procedures and fair and effective remedy mechanisms. RAI are facilitated by clear mechanisms and institutions promoting coordination, cooperation and partnership among the actors involved.

55 M. Ramazzotti, Customary Water Rights and Contemporary Water Legislation, FAO Legal Papers Online 76 (Rome: FAO, December 2008); T.O. Williams et al., Water Implications of Large-scale Land Acquisitions in Ghana, 5 Water Alternatives, no. 2 (2012). 56 C. Huggins, Rural Water Tenure in East Africa. A Comparative Study of Legal Regimes and Community Responses to Changing Tenure Patterns in Tanzania and Kenya (May 2000), p. 5.


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11. RAI are supported by multilateral international and regional organizations that comply with these principles and primarily support small-scale food producers and processors in a perspective of local and national FSN [food security network]. 12. All actors involved in agricultural investment are accountable for their decisions, actions and the impacts thereof. Source: CFS (2013).

The biggest asset of the voluntary guidelines under the UN system, in particular under the CFS, is their call for a transparent, participatory, and consensus-based process of creating and integrating the human rights-based approach, which tends to increase their acceptance by all stakeholders involved. For instance, an earlier attempt by four large international organizations – the World Bank, FAO, the International Fund for Agricultural Development (IFAD) and the United Nations Conference on Trade and Development (UNCTAD) – to establish such principles (principles for RAI – PRAI) as a kind of (international) standard or code of conduct was heavily criticized by civil society, which does not have similar means of interaction with these organizations as with the CFS.57 One often-cited disadvantage of these guidelines is their voluntary character. However, some ways to overcome this shortcoming are voluntary monitoring and “name and shame” activities, among other means. To summarize, the voluntary guidelines reviewed offer opportunities for improved governance of land tenure because they – provide a framework that states can use when developing their own strategies, policies, legislation, programs, and activities; – allow governments, civil society, the private sector, and citizens to judge whether their proposed actions and the actions of others constitute acceptable practices; – are able to provide comprehensive and detailed guidance to politically sensitive issues and technically complicated subjects such as the governance of tenure; – encourage processes to monitor and evaluate the impact of improved governance of tenure58;

57 World Bank, FAO, the IFAD and the UNCTAD, , accessed 12 May 2013. For criticism of the PRAI, e.g. ActionAid, A Brief Introduction to the “Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security” (June 2012), available at: , accessed 9 February 2013. 58 FAO (2012a), supra note 47, p. 72.



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apply potentially to all (large) producers in the signatory countries – whether foreign or national, whether land was acquired legally or illegally – and are independent of goods produced or traded; create an ideal for a development-enhancing and large agro-investment with a broad notion of responsibility; are an important advocacy tool.

Their limitations are that they – are non-binding for countries and enterprises; – neglect water issues to some extent (in particular the VG Land); – have no formal enforcement mechanisms yet.

3.3 International investment treaties Notwithstanding the emerging consensus, documented in the VG Land, with regard to the need for more regulation of investment in land, it is often neglected in the international debate that host governments’ policy space to regulate foreign direct investment (FDI) in particular is restricted by their international commitments.59 In contrast to the voluntary character of the guidelines, bilateral investment treaties (BITs) establish far-reaching and binding rules on the legal protection of foreign investors by the host countries. As these rules usually apply to “all kinds of investments,”60 FDI in land (and water for that matter) is thus also covered by these treaties, and foreign investors can directly enforce their rights guaranteed by BITs vis-à-vis the host government before transnational tribunals. In contrast to the world trading system, which is governed by a core set of multilateral rules embodied in the sectoral agreements that established the World Trade Organization, no such multilateral rules exist for the governance

59 Generally see e.g. J. Boon, How Developing Countries Can Adapt Current Bilateral Investment Treaties to Provide Benefits to Their Domestic Economies, 187 Global Business Law Review no. 1 (2011); K. Gallagher, Losing Control: Policy Space to Prevent and Mitigate Financial Crises in Trade and Investment Agreements, 29 Development Policy Review, no. 4 (2011); UNCTAD, World Investment Report 2012. Towards a New Generation of Investment Policies (New York/Geneva: United Nations, 2012). 60 See e.g. Art. 1 of the German Model Bilateral Investment Treaty (2005), reprinted in R. Dolzer and C. Schreuer, Principles of International Investment Law (Oxford: Oxford University Press, 2008), pp. 368–375.


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of FDI.61 Instead, FDI flows are protected by a broad set of 2,857 BITs.62 BITs have a common origin in the Draft Convention on Investments Abroad, which was proposed in 1959 by Hartley Shawcross, an English lawyer and a director of Shell Petroleum, and the Chairman of Deutsche Bank, Herman Abs. The AbsShawcross Convention was a reaction to the widespread expropriation, nationalization, and bad treatment of foreign investors by developing countries in the post-colonial era.63 Accordingly, the Abs-Shawcross Convention and capitalexporting countries’ model texts, which are largely based on the Convention, establish far-reaching and one-sided rules for the protection of foreign investors. Interestingly, the system has developed largely in line with the basic structure of the Abs-Shawcross Convention for more than five decades. It is only recently that the public as well as civil society actors have been questioning the purpose and function of BITs as tools that are primarily designed to provide foreign investors with an additional layer of legal protection. In contrast to the world trade system, BITs were originally not pursued as instruments to enhance market access for foreign investors (i.e. to provide foreign investors with protection in the pre-establishment phase). This novel feature was introduced first in BITs of the United States in the 1980s and is usually applied in Preferential Trade and Investment Agreements (PTIAs), which are gradually replacing BITs as the main instruments to govern FDI flows.64 Most of the existing BITs thus open up the possibility for host countries to regulate FDI before it enters the country. Thereby, host countries are able to decide which industries and kinds of investments they would like to admit and which requirements these investors have to fulfill (e.g. joint venture and technology-transfer requirements). Notwithstanding this room for maneuver in the pre-establishment phase, BITs constrain host governments’ policy space in the post-establishment phase. BITs oblige the host country to treat foreign investors in a non-discriminatory way (national treatment and most-favored-nation treatment), expropriate only against just and effective compensation, and grant fair and equitable treatment. So-called umbrella clauses, which are an integral part of a majority 61 See e.g. A. Berger, Do We Really Need a Multilateral Investment Agreement?, German Development Institute/Deutsches Institut für Entwicklungspolitik (DIE) Briefing Paper 9/2013 (Bonn, 2013). 62 UNCTAD, World Investment Report 2013. Global Value Chains: Investment and Trade for Development (New York/Geneva: United Nations, 2013), p. 101. 63 See e.g. A. Newcombe and L. Paradell, Law and Practice of Investment Treaties: Standards of Treatment (Alphen aan den Rijn: Kluwer Law International, 2009). 64 R. Hofmann, C. Tams and S. Schill (eds.), Preferential Trade and Investment Agreements: Towards a New Ordering Paradigm in International Investment Law? (Baden-Baden: Nomos, forthcoming 2013).



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of BITs, protect individual investment contracts between foreign investors and host countries. Due to the umbrella clause, a breach of the investment contract by the host country is equivalent to a breach of the BIT. The distinctive characteristic of the international investment regime is that foreign investors, as private legal persons, are enabled to bring claims against alleged violations by the host countries to transnational tribunals. The investor-state dispute-settlement (ISDS) mechanism is a powerful tool for the investor to enforce the substantive BIT provisions. Except for more recent treaties, BITs do not include binding language on the right of the host country to create regulations, or particular references to sustainable development. Developing countries have signed BITs mainly with the goal of attracting FDI. The empirical literature on the effects of BITs on FDI flows, however, is inconclusive. Most econometric studies argue that BITs do have a positive effect on FDI.65 One of the major weaknesses of these studies is that they did not account for the variety of investment rules found in different agreements. More detailed studies, in contrast, find that stricter investor-state dispute-settlement provisions, which make substantive provisions enforceable, do not significantly increase FDI flows.66 Other studies that distinguish international investment agreements according to the inclusion of market access provisions find that these provisions are only effective when they are found in PTIAs.67 Furthermore, surveys of foreign investors conclude that they rarely take these agreements into account68 when making investment decisions, providing further evidence that these treaties are rather ineffective tools for helping developing countries attract FDI. In view of this ineffectiveness, the substantive provisions of BITs, enforceable through the ISDS mechanism, have a potentially severely constraining

65 For an overview see UNCTAD, The Role of International Investment Agreements in Attracting Foreign Direct Investment to Developing Countries (New York/Geneva: United Nations, 2009), and K. Sauvant and L. Sachs (eds.), The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties, and Investment Flows (New York: Oxford University Press, 2009). 66 See J. Yackee, Bilateral Investment Treaties, Credible Commitment, and the Rule of (International) Law: Do BITs Promote Foreign Direct Investment? 42 Law & Society Review, no. 4 (2008), and A. Berger et al., More Stringent BITs, Less Ambiguous Effects on FDI? Not a Bit!, 112 Economic Letters (2011). 67 See A. Berger et al., Do Trade and Investment Agreements Lead to More FDI? Accounting for Key Provisions inside the Black Box, 10 International Economics and Economic Policy, no. 2 (2013). 68 J. Yackee, Do Bilateral Investment Treaties Promote Foreign Direct Investment? Some Hints from Alternative Sources of Evidence, 51 Virginia Journal of International Law, no. 2 (2010).


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impact on national law.69 Dolzer argues that three provisions in particular have a deep impact on national law-making, namely the fair and equitable treatment, indirect expropriation, and umbrella clauses.70 These provisions create farreaching rights for foreign investors because they extend to a broad range of public policies (including environment and health policies) and are drafted using vague language. In particular, this latter aspect provides transnational arbitration tribunals with a lot of freedom to interpret these rules in an investorfriendly way, thus restricting host countries’ policy space to regulate foreign investment. Against this background, a number of capital-exporting countries have reformed their BIT and PTIA model texts and are negotiating treaties that are aimed at enhancing host countries’ policy space. This trend started as a result of the first ISDS proceedings against the United States, Canada, and Mexico on the basis of the North American Free Trade Agreement (NAFTA). The NAFTA countries have subsequently adapted their treaty-making practice and are now negotiating BITs and PTIAs that increase the policy space of the host country to regulate FDI for public purposes. The EU will most likely follow this model of the NAFTA countries. Due to the Lisbon Treaty,71 the competency for FDI shifted from the member states to the EU level, and future EU investment treaties will be negotiated by the European Commission and ratified by the Council and the European Parliament. This new political economy of investment treaty-making in the EU – in addition to the normative obligation to comply with Art. 21 of the Treaty of the Union72 – suggests that future EU investment treaties will deviate

69 See e.g. J. Knörich and A. Berger, Friends or Foes? Interactions between Indonesian International Investment Agreements and National Investment Law, German Development Institute/Deutsches Institut für Entwicklungspolitik (DIE), Study (Bonn, forthcoming). 70 R. Dolzer, The Impact of International Investment Treaties on Domestic Administrative Law, 37 International Law and Politics, no. 4 (2006), 935–953. 71 The Lisbon Treaty that entered into force on 1 December 2009 is the most recent amendment of the constitutional framework of the EU. In the area of international economic policy making the most significant change was the expansion of the scope of the EU’s common commercial policy by the competency for FDI. As a result, the EU has now not only the exclusive competency to negotiate international rules for trade but also for investment. See e.g. J. Chaisse, Promises and Pitfalls of the European Union Policy on Foreign Investment. How will the New EU Competence on FDI Affect the Emerging Global Regime? 15 Journal of International Economic Law, no. 1 (2012). 72 Art. 21 of the Treaty of the Union requires that the external actions of the EU should inter alia encourage sustainable development in developing countries with the aim of reducing poverty.



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from the traditional BIT approach of the member states to include more development-friendly rules that enhance the policy space of host countries.73 The noteworthy feature of future EU investment agreements is that they will replace the old member state BITs.74 Despite these recent changes in investment treaty-making and the widespread criticism of civil society actors against the one-sidedness of BITs, there is not much that can be done to refocus the international investment regime toward the principles that are at the core of the VG Land, at least in the shortto medium term. As long as old, one-sided BITs have not been replaced by new and more balanced BITs and PTIAs, foreign investors are able to refer to more favorable treaties through most-favored-nation treatment provisions and complex corporate structuring arrangements importing the “stronger” rules from older treaties. Hence, policymakers in host and home countries who aim to implement some of the principles of the VG Land have to be aware of this systemic inertia of the international investment regime, which will hamper effective regulations of FDI in land for quite some time. In partial conclusion, investment treaties do not have a positive impact on making LSLAs more development-friendly; in contrast, they severely hamper the ability of host countries to regulate LSLAs because – they reduce the policy space of host countries to effectively regulating LSLAs; – they do not significantly attract FDI flows; – they lack a strong development or sustainable development dimension; – they offer foreign investors more generous rights than domestic investors; – they do not permit domestic actors to sue foreign investors in cases of misconduct. One positive feature is that – they may provide the possibility to regulate FDI in the pre-establishment phase.

73 A. Berger and J. Harten, What Opportunities Do the New EU International Investment Agreements Offer for Developing Countries?, German Development Institute/Deutsches Institut für Entwicklungspolitik (DIE), Briefing Paper 12/2012 (Bonn, 2012). 74 See Art. 3 of the Regulation No. 1219/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2012 on the establishing transitional arrangements for bilateral investment agreements between Member States and third countries.


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3.4 Global water governance regimes and bi-/multilateral river treaties If the acquired large-scale land tracts are irrigated on a large scale, their water consumption can have transboundary effects downstream if rivers and their tributaries are shared, such as with the Nile and Niger rivers. The global water governance architecture related to transboundary freshwater bodies75 shares the common feature that states are the principal actors, not only to negotiate but also to implement, monitor, and enforce rules. In this respect, it is the respective riparian state to a bi-/multilateral river agreement that has to assess whether water demand from new large-scale investments in irrigated agriculture can be satisfied without violating the terms concluded in the river treaty; and finally to guarantee that there is no significant negative impact downstream (UN Watercourse Convention, Art. 7). However, these effects have not been studied in detail yet. Jägerskog et al.76 wrote an awareness-raising report on the topics that could emerge. They assume that upstream countries (e.g. Ethiopia on the Nile River) could use LSLAs as a political instrument in multilateral water negotiations, which ultimately could change the power balance between upstream and downstream countries. Contracts with private land investors could weaken existing bi-/multilateral river-related agreements, such as the Egypt–Sudan Treaty of 1959, to which Ethiopia is not party. On the contrary, Ethiopia was excluded from the treaty, and Egypt and Sudan were not willing to renegotiate the 1959 Egypt–Sudan Treaty.77

75 The global water governance architecture is diverse and fragmented; it comprises the UN Convention on the Law of Non-Navigational Uses of International Watercourses, 1997; the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 1992; the SADC Revised Protocol on Shared Watercourse Systems in the Southern African Development Community, 2000; and the European Water Framework Directive (2000) and the associated Groundwater Directive (2006), which are a specific case of a supra-national law within a politically integrated region. 76 A. Jägerskog, A. Cascão, M. Hårsmar and K. Kim. Land Acquisitions: How Will They Impact Transboundary Waters? (Report no. 30, SIWI, Stockholm 2012). 77 T. von Lossow. Machtverschiebung am Nil. Äthiopien und Ägypten begegnen sich im Wasserkonflikt auf Augenhöhe (SWP-Aktuell 11, Februar 2013).



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3.5 Private standards and codes Private standards and codes here are meant to include those which the private sector – often in conjunction with other stakeholders – has elaborated as selfbinding rules, and which the relevant actors have to comply with if they voluntarily accept them in exchange for certain advantages such as a label, access to a specific market, a conditional credit, or reputation. As already mentioned, this comprises a large cluster of mechanisms; some voluntary schemes span the bridge to more binding measures such as human rights and government regulation. These standards and codes have emerged as a megatrend in recent years, particularly in developed countries,78 largely to assure consumers of certain qualities of goods and services as well as of the production process. These characteristics often relate to food safety concerns, but increasingly, social and environmental concerns have also been requested and taken up in the context of private standards and certification systems. In contrast to government regulations, private standards are not uniform to all goods, but open to competition among the standards and the (groups of) enterprises adhering to them. Thereby, they tend to generate fragmented markets, which industries and consumers can use to find their optimal portfolio of production and consumption patterns. They also allow price differentiation according to the strictness of standards, the costs of adherence and certification, the reputation attached, and also the visibility to the consumer (which is different for end products and industrial input). Different types of private standards can be distinguished, for instance, those of individual companies and groups; those involving stakeholders in the elaboration of the codes to a certain degree; those taking into consideration some or all steps, from production to consumption; those applying to one or many commodities and products; those that are valid at the national, regional, and/or global levels; those accounting for social and/or environmental issues (including greenhouse gas emissions); and those accounting for tailor-made issues, indicators, and monitoring systems. This differentiation makes private standards attractive, but it can also create inefficiencies, for instance when market participants need to comply with several standards, resulting in duplication of compliance costs, or when there is a need to comply with different standards for different target markets or buyers. According to Cuffaro and Hallam, the chances of standards being effectively implemented depend on three variables: “integration along value chains; 78 R. Falkner, Global Governance – The Rise of Non-state Actors, EAA technical report 4/2011 (Copenhagen: European Environment Agency, 2011).


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effectiveness of civil society pressure; vulnerability of key actors to such pressure.”79 Strong participation of local stakeholders is also conducive to the implementation of standards as well as the public transparency of methods and findings and simultaneous support processes within factories and global supply chains.80 A first small wave of private standards started in the 1970s, led by international organizations such as the ILO and the OECD. In the 1990s, a second, much larger wave emerged, this time led by governments, NGOs, and companies, particularly multinationals. A third wave of international standards stipulates a set of social and ecological requirements for large investments81: the Global Compact’s Ten Principles for private companies (UN)82; the Santiago Principles for Sovereign Wealth Funds; the World Bank Group’s Safeguards; and the Equator Principles for project financing of private banks. In the biofuels sector in particular, an additional set of standards has emerged that bridges to some extent the gap between voluntary standards and compulsory regulation. They restrict the recognition of agro-fuels to national targets (quotas) and instruments (subsidies, levy exemption, support, etc.), to only such products that satisfy certain levels of greenhouse gas reductions (sometimes including indirect land use changes), plus a number of other environmental conditions such as biodiversity protection. In several of the certification systems recognized, social standards are also enshrined. Land-transaction issues are hardly ever included, but many standards require compliance with labor and other social standards. Certification standards are very heterogeneous, and – in light of the problems of fragmentation set out above – harmonization is recommended.83 Yet, 79 N. Cuffaro and D. Hallam, “Land Grabbing” in Developing Countries: Foreign Investors, Regulation and Codes of Conduct (January 2011), p. 8, available at: , accessed 12 May 2013. 80 D. O’Rourke, Multi-Stakeholder Regulation: Privatizing or Socializing Global Labor Standards? 34 World Development, no. 5 (May 2006). 81 These and other finance standards are discussed in another context in A. Baietti et al., Green Infrastructure Finance: Leading Initiatives and Research (Washington, DC: World Bank, 2012). 82 Presently, also a Global Compact on Sustainable Agriculture Business Principles is developed in the UN framework. See UN Global Compact SABPs (Sustainable Agriculture Business Principles), available at: , accessed 6 May 2013. 83 IEA, Recommendations for Improvement of Sustainability Certified Markets, Strategic InterTask Study: Monitoring Sustainability Certification of Bioenergy (February 2013), available at: , accessed 12 May 2013.



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some authors and organizations claim that these standards are the welcome forerunners of (an attempt to develop) global standards for the entire agricultural production sector.84 This would indeed be a revolutionary step, but it is far from realization, given the resistance of many developing countries and industries to accept common standards, as illustrated above. Land rights have not been an important feature of private standards; the only exception being land issues that affect workers and associated smallholders. However, the wave of LSLAs has also raised awareness regarding this topic. Transparency is an important aspect of many private standards. It is also the guiding principle of the Extractive Industry Transparency Initiative, which is currently also progressing toward enhancing transparency in alternatives to a given investment proposition, contractual terms and project implementation. Several other initiatives match in some aspects: The Open Contracting initiative – established by actors of society, government, multilateral agencies, and the private sector – supports transparency in public contracting, which encompasses contracts funded by combinations of public, private, and donor sources.85 The Global Reporting Initiative – now an independent organization that was initiated in 1997 by international environmental organizations – has developed voluntary standardized reporting of information on environmental, labor, and human rights performance.86 It is important to note that the effects of standards on development and the overall achievements of social and environmental goals are complex and disputed. The implementation of standards may have important side effects, which can be detrimental to the pursued goals, in particular for developing countries and smallholders.87 The latter may not be able to comply, or they have to face high costs for compliance and certification, costs that – particularly if calculated per unit of product – are often higher than those of developed countries and formal actors. Thus, as discussed for government regulation, there is strong resistance to adopt such standards in developing countries, and it is at least recommended to develop them collectively. 84 I.e. S. Schlegel, T. Kaphengst and S. Cavallieri, Options to Develop a Global Standard-Setting Scheme for Products Derived from Natural Resources (NRS) (Frankfurt/Berlin: WWF Germany and Ecologic, 2008). 85 Open Contracting, available at: , accessed 12 May 2013. 86 Global Reporting Initiative, available at: , accessed 12 May 2013. 87 S. Henson and J. Humphrey, Understanding the Complexities of Private Standards in Global Agri-food Chains As They Impact Developing Countries, 46 The Journal of Development Studies, no. 9 (2010), 1628–1646.


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In relation to the complex challenges of LSLAs set out above, voluntary private standards offer opportunities because – they are more flexible than government regulations; – they can be specific to: food/agricultural value chains; local conditions (e.g. water conditions) and markets; and thus, potentially more realistic and adjusted to the needs and possibilities of the actors; – they sometimes allow price premiums, thus creating more incentives to comply; – or, at the very least, they permit access to high-value markets that demand these standards; – they can be relatively easily linked to specific trainings and help to mobilize funding for support. The weaknesses of private standards are that – they only apply to those willing to comply while those who are unwilling to comply can then offer goods at lower prices due to lower costs; – they tend to disadvantage small units and actors, in particular smallholders, due to high, fixed costs of certification; – they are typically oriented toward the interests of the consumers (in highend markets) and not to the producers, thus neglecting the latter’s specific needs and possibilities.

4 Conclusions In this article, we assess key international frameworks with regard to their suitability to regulate LSLAs in order to enhance their contribution to economic and social development in host countries. Table 1 summarizes the findings of this assessment. The most important conclusion from our assessment is that no single framework provides an overarching, comprehensive tool to regulate all aspects of LSLAs. Moreover, some frameworks – in particular, sweeping provisions for the protection of foreign investors in international investment agreements – may constitute an impediment for host countries to enact legislation that may be required to fulfill commitments made in the context of other international frameworks. For example, the requirement of international investment agreements to ensure fair and equitable treatment as well as refrain from any discrimination of different kinds of investors may reduce the host country’s ability to support local investors. Of course, limiting policy space is not negative per se, to the contrary – international frameworks are primarily explicitly intended to reduce policy space to improve predictability and protect from


Broad coverage Binding principles based on universally accepted values Well-established monitoring and reporting mechanisms In support of weak stakeholders

Limitations Shortcomings in substantive rules and legal remedies, often resulting in their ineffectiveness to correct national realities Responsibilities of private actors only emerging Highly disputed enforcement at international level

Strengths

Human rights treaties

Water rights issues only partially covered Non-binding No monitoring and reporting mechanism

Generally broad consensus Human rights based Specific on land issues Generally aim at taking into account the local context

Voluntary guidelines

Reduce policy space of host countries – often in favor of foreign investors Fail to consider social and environmental dimensions Often no monitoring and sanctioning for investor conduct ISDS arbitration enables foreign investors to bypass domestic legal system Does not apply to national investors

Possibility to regulate the entry of FDIs New treaties ensure that investor protection should not conflict with social policies

International investment treaties

Relies on effective national water resources planning, management, and governance Relative power of national governments limits influence over transboundary water implications of LSLAs

Binding rules for states, not investors; enforcement through state Conflicting interest between up- and downstream states: interest of downstream states to restrict waterintensive investments

Bi- and multilateral river treaties

Table 1: Strengths and limitations of regulating LSLAs of the international frameworks reviewed

Apply only to willing actors Difficult to comply for the informal sector (smallholders) Often neglect local stakeholder needs (smallholders in particular, but also other weak, affected groups)

Flexible and specific forums Can provide monetary incentives for compliance Capacity development easy to link to standards

Private standards and codes


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arbitrary decisions of national policy makers. Some frameworks have limited scope to regulate LSLAs because only some investments are covered – by foreign investors, for example, or only those adhering to voluntary standards. As to voluntary multilateral guidelines, their voluntary nature dilutes the impact, since they cannot be invoked in any legal proceedings. But international binding frameworks, such as those based on human rights, also have serious limitations regarding their implementation, even with increased monitoring, compliance, and dispute-settlement efforts. In addition, some frameworks can have negative side effects, for instance voluntary standards tend to exclude small farmers. Targeting water issues in LSLAs obviously calls for specific policy interventions that are beyond land regulation and that relate to the following: the leasing and purchasing prices of land need to reflect access to water resources; prices must be higher if compared with land without water endowments; a reliable database is needed as well as water resource management plans on which to decide whether water use in agriculture should/can be extended; due consideration must be taken of actual versus new water users; the need for preassessing potential environmental effects which might derive from farm operations by means of Environmental and Social Impact Assessment studies. Above all, actual water use rights holders and agencies concerned with water planning must have a say in land-deal negotiations for two reasons: to assess whether water resources are physically available to satisfy investors’ business plans and to secure that water use rights, which are untied to land, are openly negotiated and eventually compensated. However, if LSLAs have transboundary implications, the means for regulating them are the exclusive responsibility of the government that has concluded a deal. Lack of implementing international frameworks, however, also applies to those host countries that have been labeled “development-friendly” and “progressive.”88 In fact, national legislation, including old colonial and post-colonial rules, was – and still is – difficult to apply to rural areas. The absence of state legitimacy; transparent policy processes; accountability of the state and its elites toward constituencies; as well as the lack of prosecuting the violation of rules – and the lack of benefits for adhering to them – all contribute to weakening formal rural governance systems of poor states. On the other hand, although “traditional” local (land and other) governance systems are still more influential in rural areas than modern state systems, their legitimacy basis is weak, fading, or challenged by the abuse of customary powers. They frequently do not prevent the exclusion of weaker stakeholders, 88 E.g. Tanzania, Mozambique, Ghana or Senegal, compare Oxfam (2011) supra note 9; Deininger and Byerlee (2010) supra note 7; or Alden Wily (2012) supra note 29.



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in particular where local regimes mutually conflict or overlap and where new actors and influences increasingly defy traditional norms and powers. There are numerous cases in which local traditional elites have welcomed and concluded problematic LSLAs, whether legalized by state law (such as in Ghana89) or not (such as in Sierra Leone and Zambia90). International frameworks targeted at taming the negative effects of LSLAs do not travel easily, all the more because there is not one but a set of several different partly overlapping and contradicting frameworks which – when applied individually – cover issues only partially. The salient questions are whether, how, and which norms “actually reach a domestic area”, “get on the domestic agenda”91 (Checkel 1997) and become part of domestic normative frameworks and practices. Norm localization, a concept developed by Acharya (2004),92 is promising in this context and offers avenue for future research. It defines local actors as the key in political processes translating international norms to take into consideration local conditions. At the same time, some of the frameworks explicitly try to link local conflicts directly to international norms, trying to achieve localization through strengthening direct international – local linkages. In this respect, it is of great interest to study ongoing LSLA activities in a set of host countries both with “weak” and with “good” governance structures, and to investigate how international frameworks trickle down to local policy arenas, how they are used by stakeholders, and how they are finally shaping conflicts at the local level and affecting their results. In particular, their potential for empowering poor stakeholders should be of interest for research and development.

89 Compare e.g. S. Väth, Gaining Neighbours or Big Losers – What Happened When Large-scale Land-based Investment in the Ghanaian Oil Palm Sector Met the Local Population on the Ground? Land Deal Politics Initiative Working Paper 24 (2013), , accessed 31 October 2013; S. Berry, Questions of Ownership: Proprietorship and Control in a Changing Rural Terrain – A Case Study from Ghana, 83 Africa, no. 1 (2013). 90 Compare e.g. K. Nolte, Large-scale Agricultural Investments under Poor Land Governance Systems: Actors and Institutions in the Case of Zambia, GIGA Working Papers no. 221 (Hamburg, 2013); P.E. Peters, Conflicts over Land and Threats to Customary Tenure in Africa, African Affairs (2013); German et al. (2011) supra note 9; FAO (2013) supra note 7. 91 J.T. Checkel, International Norms and Domestic Politics: Bridging the Rationalist-Constructivist Divide, 3 European Journal of International Relations, no. 4 (1997), 473–495. 92 A. Acharya, How Ideas Spread: Whose Norms Matter? Norm Localisation and Institutional Change in Asian Regionalism, 58 International Organisation (2004), 239–275.


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Literature Acharya, A., How Ideas Spread: Whose Norms Matter? Norm Localisation and Institutional Change in Asian Regionalism, 58 International Organisation (2004). ActionAid, A Brief Introduction to the “Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security” (June 2012), available at: , accessed 9 February 2013. Alden Wily, L., Governance and Land Relations: A Review of Decentralisation of Land Administration and Management in Africa (London: IIED, 2003). Alden Wily, L., Looking Back to See Forward: The Legal Niceties of Land Theft in Land Rushes, 39 Journal of Peasant Studies, no. 3–4 (2012). Alden Wily, L., The Law and Land Grabbing: Friend or Foe, presentation at the 2013 Law and Development Conference “Legal and Development Implications of International Land Acquisitions” (Kyoto, Japan, 31 May 2013). Anseeuw, W., M. Boche, T. Breu, M. Giger, J. Lay, P. Messerli and K. Nolte, Transnational Land Deals for Agriculture in the Global South, analytical report based on the Land Matrix Database (Bern/Montpellier/Hamburg: CDE/CIRAD/GIGA, 2012). Askew, K., F. Maganga and R. Odgaard, Of Land and Legitimacy: A Tale of Two Lawsuits, 83 Africa: The Journal of the International African Institute, no. 1 (2013). Baietti, A., A. Shlyakhtenko, R. La Rocca and Urvaksh D. Patel, Green Infrastructure Finance: Leading Initiatives and Research (Washington, DC: World Bank, 2012). Berger, A., Do We Really Need a Multilateral Investment Agreement? German Development Institute/Deutsches Institut für Entwicklungspolitik (DIE) Briefing Paper 9/2013 (Bonn, 2013). Berger, A., M. Busse, P. Nunnenkamp and M. Roy, Do Trade and Investment Agreements Lead to More FDI? Accounting for Key Provisions Inside the Black Box, 10 International Economics and Economic Policy, no. 2 (2013). Berger, A., M. Busse, P. Nunnenkamp and M. RoyBerger, More Stringent BITs, Less Ambiguous Effects on FDI? Not a Bit! 112 Economic Letters (2011). Berger, A. and J. Harten, What Opportunities Do the New EU International Investment Agreements Offer for Developing Countries?, German Development Institute/Deutsches Institut für Entwicklungspolitik (DIE), Briefing Paper 12/2012 (Bonn, 2012). Berry, S., Questions of Ownership: Proprietorship and Control in a Changing Rural Terrain – A Case Study from Ghana, 83 Africa, no. 1 (2013). Boon, J., How Developing Countries Can Adapt Current Bilateral Investment Treaties to Provide Benefits to Their Domestic Economies, 187 Global Business Law Review, no. 1 (2011). Bromley, D.W., Formalising Property Relations in the Developing World: The Wrong Prescription for the Wrong Malady, 26 Land Use Policy, no. 1 (2009). Brüntrup, M., Detrimental Land Grabbing or Growth Poles? Determinants and Potential Development Effects of Foreign Direct Land Investments, 20 Technikfolgenabschätzung – Theorie und Praxis, no. 1 (2012). Burnod, P., M. Gingembre and R. Andrianirina, Competition over Authority and Access: International Land Deals in Madagascar, 44 Development and Change, no. 2 (2013). CFS (Committee on World Food Security), available at: , accessed 6 May 2013.



467

Cernic, J.L., Corporate Human Rights Obligations under Stabilization Clauses, 11 German Law Journal, no. 2 (2010). Chaisse, J., Promises and Pitfalls of the European Union Policy on Foreign Investment. How Will the New EU Competence on FDI Affect the Emerging Global Regime? 15 Journal of International Economic Law, no. 1 (2012). Checkel, J.T., International Norms and Domestic Politics: Bridging the Rationalist-Constructivist Divide, 3 European Journal of International Relations, no. 4 (1997). Chu, J, Gender and “Land Grabbing” in Sub-Saharan Africa: Women’s Land Rights and Customary Land Tenure, 54 Development, no. 1 (2011). Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the ICESCR (General Comment 15: The Right to Water, arts. 11 and 12 of the International Covenant) (20 January 2003). Cotula, L., Land Deals in Africa: What Is in the Contracts? (London: IIED, 2011). Cotula, L., “‘Land Grabbing’ in the Shadow of the Law: Legal Frameworks Regulating the Global Land Rush”, in R. Rayfuse and Nicole Weisfelt (eds.), The Challenge of Food Security (Cheltenham: Edward Elgar, 2012). Cotula, L., The Great African Land Grab? Agricultural Investments and the Global Food System (London/New York: Zed Books, 2013). Cotula, L., S. Vermeulen, R. Leonard and J. Keeley, Land Grab or Development Opportunity? Agricultural Investment and International Land Deals in Africa (London/Rome: IIED/FAO/ IFAD, 2009). Cuffaro, N. and D. Hallam, “Land Grabbing” in Developing Countries: Foreign Investors, Regulation and Codes of Conduct (January 2011), available at: , accessed 12 May 2013. De Schutter, O., Large-scale Land Acquisitions and Leases: A Set of Core Principles and Measures to Address the Human Rights Challenge (June 2009), available at: , accessed 9 February 2013. Deininger, K. and D. Byerlee, Rising Global Interest in Farmland: Can It Yield Sustainable and Equitable Benefits? (Washington, DC: World Bank, 2010). Deininger, K. and G. Feder, Land Registration, Governance, and Development: Evidence and Implications for Policy, 24 The World Bank Research Observer, no. 2 (2009). Dolzer, R., The Impact of International Investment Treaties on Domestic Administrative Law, 37 International Law and Politics, no. 4 (2006). Dolzer, R. and C. Schreuer, Principles of International Investment Law (Oxford: Oxford University Press, 2008). Donnelly, J., Universal Human Rights in Theory and Practice (2nd ed., Ithaca, NY: Cornell University Press, 2003). Dwyer, M.B., Building the Politics Machine: Tools for ‘Resolving’ the Global Land Grab, 44 Development and Change, no. 2 (2013). Edelman, M., Messy Hectares: Questions about the Epistemology of Land Grabbing Data, 40 Journal of Peasant Studies, no. 3 (2013). FAO, Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security (Rome, 2005). FAO, From Land Grab to Win-Win. Seizing the Opportunities of International Investments in Agriculture (Rome, 2009a).


468

M. Brüntrup et al.

FAO, Guide on Legislating for the Right to Food (Rome, 2009b). FAO, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (Rome, 2012a). FAO, Governance of Land Tenure. Making It Happen (Rome, 2012b). FAO, Trends and Impacts of Foreign Investment in Developing Country Agriculture – Evidence from Case Studies (Rome, 2013). Falkner, R., Global Governance – The Rise of Non-state Actors, EAA Technical Report 4/2011 (Copenhagen: European Environment Agency, 2011). Friis, C. and A. Reenberg, Land Grab in Africa: Emerging Land System Drivers in a Teleconnected World, Global Land Project-International Project Office (GLP-IPO), GLP Report no. 1 (University of Copenhagen, 2010). Gallagher, K., Losing Control: Policy Space to Prevent and Mitigate Financial Crises in Trade and Investment Agreements, 29 Development Policy Review, no. 4 (2011). German, L., G. Schoneveld and E. Mwangi, Contemporary Processes of Large-scale Land Acquisition by Investors: Case Studies from sub-Saharan Africa, Occasional Paper 68 (Bogor/Indonesia: CIFOR, 2011). Global Reporting Initiative, available at: , accessed 12 May 2013. GRAIN, Seized: The 2008 Landgrab For Food And Financial Security (October 2008), available at: , accessed 6 May 2013. GRAIN, Squeezing Africa Dry: Behind Every Land Grab Is a Water Grab (Barcelona, June 2012), available at: , accessed 21 August 2012. GRAIN, available at: , accessed 6 May 2013. Hafner-Burton, E. and K. Tsutsui, Human Rights in a Globalizing World: The Paradox of Empty Promises, 110 American Journal of Sociology, no. 5 (2005). Hampel-Milagrosa, A. and M. Brüntrup, Land Grabbing and its Gender Implications – What Do We Know So Far, presentation at the 2013 Law and Development Conference “Legal and Development Implications of International Land Acquisitions” (Kyoto, Japan, 31 May 2013). Henson, S. and J. Humphrey, Understanding the Complexities of Private Standards in Global Agri-food Chains As They Impact Developing Countries, 46 The Journal of Development Studies, no. 9 (2010). Herrmann, R., U. Grote and M. Brüntrup, Household Welfare Outcomes of Large-scale Agricultural Investments: Insights from Sugarcane Outgrower Schemes and Estate Employment in Malawi, paper presented at the Annual World Bank Conference on Land and Poverty (Washington, DC, 8–11 April 2013), available at: , accessed 6 May 2013. Hertzog, T. et al., Ostrich-Like Strategies in Sahelian Sands? Land and Water Grabbing in the Office du Niger, Mali, 5 Water Alternatives, no. 2 (2012). Hilhorst, T., J. Nelen and N. Traoré, Agrarian Change below the Radar Screen: Rising Farmland Acquisitions by Domestic Investors in West Africa. Results from a Survey in Benin, Burkina Faso and Niger, unpublished paper by the Royal Tropical Institute and SNV (April 2011), available at: , accessed 6 May 2013.



469

Hodgson, S., Land and Water – The Rights Interface, LSP Working Paper 10 (Rome: FAO, 2004). Hofmann, R., C. Tams and S. Schill (eds.), Preferential Trade and Investment Agreements: From Recalibration to Reintegration (Baden-Baden: Nomos, 2013). Huggins, C., Rural Water Tenure in East Africa. A Comparative Study of Legal Regimes and Community Responses to Changing Tenure Patterns in Tanzania and Kenya (May 2000). IEA, Recommendations for Improvement of Sustainability Certified Markets, Strategic Inter-Task Study: Monitoring Sustainability Certification of Bioenergy (February 2013), available at: , accessed 12 May 2013. Jägerskog, A., A. Cascão, M. Hårsmar and K. Kim, Land Acquisitions: How Will They Impact Transboundary Waters?, Report no. 30 (Stockholm: SIWI, 2012). Kennedy, E.T., The Effects of Sugarcane Production on Food Security, Health, and Nutrition in Kenya: A Longitudinal Analysis (Washington, DC: IFPRI, 1989). Knörich, J. and A. Berger, Friends or Foes? Interactions between Indonesia’s International Investment Agreements and National Investment Law, German Development Institute/ Deutsches Institut für Entwicklungspolitik (DIE), Study (Bonn, 2014, Study No. 82). Land Matrix, available at: , accessed 6 May 2013. Maertens, M. and J.F. Swinnen, Trade, Standards, and Poverty: Evidence from Senegal, 37 World Development, no. 1 (2009). McCulloch, N. and M. Ota, Export Horticulture and Poverty in Kenya, Institute of Development Studies Working Paper 174 (Sussex, 2002). Mehta, L., G.J. Veldwisch and J. Franco, Introduction to the Special Issue: Water Grabbing? Focus on the (re)Appropriation of Finite Water Resources, 5 Water Alternatives, no. 2 (2012). Minot, N. and M. Ngigi, Are Horticultural Exports a Replicable Success Story? Evidence from Kenya and Côte d’Ivoire, Conferences Paper no. 7, presented at the InWEnt, IFPRI, NEPAD, CTA conference Successes in African Agriculture (Pretoria, 2003). Newcombe, A. and L. Paradell, Law and Practice of Investment Treaties: Standards of Treatment (Alphen aan den Rijn: Kluwer Law International, 2009). Nolte, K., Large-scale Agricultural Investments under Poor Land Governance Systems: Actors and Institutions in the Case of Zambia, GIGA Working Papers no. 221 (Hamburg: GIGA German Institute of Global and Area Studies, 2013). Open Contracting, available at: , accessed 12 May 2013. Oxfam, A Sweeter Future? The potential for EU sugar reform to contribute to poverty reduction in southern Africa (London, 2004). Oxfam, Land and Power: The Growing Scandal Surrounding the New Wave of Investments in Land (Oxford, 2011). O’Rourke, D., Multi-Stakeholder Regulation: Privatizing or Socializing Global Labor Standards? 34 World Development, no. 5 (May 2006). Pearce, F., Splash and Grab: The Global Scramble for Water, New Scientist (4 March 2013), available at: , accessed 19 April 2013. Peters, P.E., Conflicts Over Land and Threats to Customary Tenure in Africa, African Affairs (2013). Herr Görlt, ich schicke Ihnen den Link, da ich mir nicht sicher bin: http://afraf. oxfordjournals.org/content/early/2013/08/07/afraf.adt047.abstract. Platteau, J.P., The Evolutionary Theory of Land Rights as Applied to sub‐Saharan Africa: A Critical Assessment, 27 Development and Change, no. 1 (2008). RAI, available at: , accessed 12 May 2013.


470

M. Brüntrup et al.

Ramazzotti, M., Customary Water Rights and Contemporary Water Legislation, FAO Legal Papers Online 76 (Rome: FAO, 2008). Richards, M., Social and Environmental Impacts of Agricultural Large-scale Land Acquisitions in Africa – With a Focus on West and Central Africa, Rights and Resources Initiative (Washington, DC, 2013). Sauvant, K. and L. Sachs (eds.), The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties, and Investment Flows (New York: Oxford University Press, 2009). Schaffnit-Chatterjee, C., Foreign Investment in Farmland. No Low-Hanging Fruit, Deutsche Bank research (Frankfurt a. M., November 2012), available at: , accessed 9 February 2013. Schlegel, S., T. Kaphengst and S. Cavallieri, Options to Develop a Global Standard-Setting Scheme for Products Derived from Natural Resources (NRS) (Frankfurt/Berlin: WWF Germany and Ecologic, 2008). Schoneveld, G.C., L.A. German and E. Nukator, Towards Sustainable Biofuel Development: Assessing the Local Impacts of Large-scale Foreign Land Acquisitions in Ghana, paper prepared for the World Bank Annual Conference on Land Policy and Administration (Washington, DC, 26–27 April 2010). Scoones, I., R. Hall, S.M. Borras, B. White and W. Wolford, The Politics of Evidence: Methodologies for Understanding the Global Land Rush, 40 Journal of Peasant Studies, no. 3 (2013). Sierra Leone Network on the Right to Food, Study Reveals Alarming Facts about Plantation of Addax Bioenergy in Sierra Leone (June 2011), available at: , accessed 21 April 2013. Smaller, C. and H. Mann, A Thirst for Distant Lands: Foreign Investment in Agricultural Land and Water, Foreign Investment for Sustainable Development Program, International Institute for Sustainable Development (IISD) (Winnipeg, Canada 2009). United Nations, Treaty Series, vol. 993, depositary notification C.N.781.2001.TREATIES-6 of 5 October 2001. United Nations, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UN Document A/HRC/17/31 (March 2011). U.N. Human Rights Council (HRC), Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Protect, Respect and Remedy: A Framework for Business and Human Rights, U.N. Doc. A/HRC/11/13/ (22 April 2009). UN Global Compact SABPs (Sustainable Agriculture Business Principles), available at: , accessed 6 May 2013. UNCTAD, The Role of International Investment Agreements in Attracting Foreign Direct Investment to Developing Countries (New York/Geneva: United Nations, 2009). UNCTAD, World Investment Report 2012. Towards a New Generation of Investment Policies (New York/Geneva: United Nations, 2012). UNCTAD, World Investment Report 2013. Global Value Chains: Investment and Trade for Development (New York/Geneva: United Nations, 2013).



471

Väth, S., Gaining Neighbours or Disruptive Factors – What Happened When Large-scale Landbased Investment in the Ghanaian Oil Palm Sector Met the Local Population on the Ground?, paper presented at the International Conference on Global Land Grabbing II (Cornell University, Ithaca, NY, 17–19 October 2012), available at: , accessed 31 October 2013. Vermeulen, S. and L. Cotula, Over the Heads of Local People: Consultation, Consent, and Recompense in Large-Scale Land Deals for Biofuels Projects in Africa, 37 The Journal of Peasant Studies, no. 4 (2010). Von Braun, J. and R.S. Meinzen-Dick, “Land Grabbing” by Foreign Investors in Developing Countries: Risks and Opportunities (Washington, DC: IFPRI, 2009). Von Lossow, T., Machtverschiebung am Nil. Äthiopien und Ägypten begegnen sich im Wasserkonflikt auf Augenhöhe (SWP-Aktuell 11, Februar, 2013). Williams, T.O., et al., Water Implications of Large-scale Land Acquisitions in Ghana, 5 Water Alternatives, no. 2 (2012). Wolford, W., et al., Governing Global Land Deals: The Role of the State in the Rush for Land, 44 Development and Change, no. 2 (2013). Yackee, J., Bilateral Investment Treaties, Credible Commitment, and the Rule of (International) Law: Do BITs Promote Foreign Direct Investment? 42 Law & Society Review, no. 4 (2008). Yackee, J., Do Bilateral Investment Treaties Promote Foreign Direct Investment? Some Hints from Alternative Sources of Evidence, 51 Virginia Journal of International Law, no. 2 (2010).

Note: The assessments in this paper represent the authors’ own opinions and not necessarily those of their organizations.
