Special Issue in Law and Development

EDITOR-IN-CHIEFYong-Shik Lee

Law aND DEvELOpmENT REvIEw

Brought to you by | The University of Auckland LibraryAuthenticated

Download Date | 1/12/15 10:31 PM

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 econo-mics and law and society in that its primary focus is the development aspect of international and dome-stic 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 direc-tions for law and development studies. The LDR will be of interest well beyond academia to reach po-licy 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, nor-mally 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 Manchester, Manchester, M13 9PL, UK, Email: [email protected]

JOuRNaL maNagER Alexander Goerlt, De Gruyter, Genthiner Straße 13, 10785 Berlin, Germany, Tel.: +49 (0)30 260 05 – 234, Fax: +49 (0)30 260 05 – 250, Email: [email protected]

RESpONSIBLE FOR aDvERTISEmENTS Heiko Schulze, De Gruyter, Genthiner Straße 13, 10785 Berlin, Germany. Tel.: +49 (0)30 260 05-358, Fax: +49 (0)30 260 05-264, Email: [email protected]

TypESETTINg Integra Software Services Pvt. Ltd., Pondicherry, India.

pRINTINg Franz X. Stückle Druck und Verlag e.K., Ettenheim

© 2014 Law and Development Review

Printed in Germany



Contents

Editorial

Andreas NeefLaw and Development Implications of Transnational Land Acquisitions:Introduction 187

Articles

Liz Alden WilyThe Law and Land Grabbing: Friend or Foe? 207

Salim FarrarArab Acquisitions in Sub-Saharan Africa: Partnersin Development? 243

Emel Zerrouk and Andreas NeefThe Media Discourse of Land Grabbing and Resistance DuringMyanmar’s Legal Reformation: The Monywa Copper Mine 275

Perry S. BechkyInternational Adjudication of Land Disputes: For Development andTransnationalism 313

Uche Ewelukwa OfodileManaging Foreign Investment in Agricultural Land in Africa:The Role of Bilateral Investment Treaties and International InvestmentContracts 329

Lorenza Paoloni and Antonio OnoratiRegulations of Large-Scale Acquisitions of Land: The Case of theVoluntary Guidelines on the Responsible Governance of Land, Fisheriesand Forests 369

The Law and Development Review 2014 | Volume 7 | Issue 2



Fantu F. Mulleta, Pierre Merlet and Johan BastiaensenQuestioning the “Regulatory Approach” to Large-Scale Agricultural LandTransfers in Ethiopia: A Legal Pluralistic Perspective 401

Michael Brüntrup, Waltina Scheumann, Axel Berger, Lidija Christmann andClara BrandiWhat Can Be Expected from International Frameworks to Regulate Large-ScaleLand and Water Acquisitions in Sub-Saharan Africa? 433

2014 | Volume 7 | Issue 2 The Law and Development Review



Editorial

Andreas Neef*

Law and Development Implicationsof Transnational Land Acquisitions:Introduction

Abstract: This introductory article to the 2014 Special Issue of Law andDevelopment Review provides a brief overview of the scope, actors, discoursesand impacts of the global land and resource rush, a phenomenon that has beentriggered by the confluence of the financial, food and fuel crises in the late2000s. It situates transnational land acquisitions in the law–development–ethics–politics nexus and introduces eight articles that are based on a selectionof papers presented at the 2013 Law and Development Conference “Legal andDevelopment Implications of International Land Acquisitions”, held from 30 to31 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 years2007 and 2008 has triggered a new wave of transnational land acquisitions andleases, primarily in countries in the Global South that are rich in naturalresources and poor in governance mechanisms. While sub-Saharan Africa andSoutheast Asia are the major hotspots of the global land and resource rush,countries in Latin America, Central Asia, the Pacific and Eastern Europe andeven 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, Facultyof Arts, University of Auckland, Auckland 1142, New Zealand, E-mail: [email protected]

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



scholars have compared the current land and resource rush to previous globalland grabs, but have offered differing conclusions regarding its long-term pro-spects. While some scholars maintain that the current land rush is unprece-dented in both scale and speed and will have long-lasting and devastating socialand ecological consequences, others contend that it is just another land andresource boom that will eventually fade away, as a large share of the invest-ments is bound to fail economically or will be resisted locally, with support fromgrowing international advocacy movements.1 There is also a continuing debatewhether at least some of these large-scale land acquisitions can provide tangibleand positive development outcomes for affected local communities2 or whetherthe global land rush should be categorically condemned as an unacceptablemanifestation of “neo-colonialism” and “accumulation by dispossession”, asstressed by Via Campesina, GRAIN, Global Witness and a number of otheradvocacy groups.3 Associated with this debate is the question whether large-scale transnational land deals can always be categorized as “land grabs”,implying that they are either outright illegal under national and/or internationallegal frameworks (e.g. when they involve the violent displacement of formalright-holders), largely illegitimate (e.g. when they infringe on customary landrights not acknowledged by the state) or at least unethical (e.g. when invest-ments formally follow the rules, but still have adverse social, cultural or eco-nomic 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, eco-

nomic 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 inDeveloping Countries: Risks and Opportunities. IFPRI Policy Brief 13 (Washington, DC:International Food Policy Research Institute, 2009); World Bank, Rising Global Interest inFarmland: 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, 38Review 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-First-Century Land Grabs: Accumulation by Agricultural Dispossession. Global Research – Centre forResearch on Globalization (2013), available at: http://www.globalresearch.ca/twenty-first-cen-tury-land-grabs-accumulation-by-agricultural-dispossession/5356768, accessed 23 April 2014.

188 A. Neef



iv. not based on transparent contracts that specify clear and binding commit-ments about activities, employment and benefits sharing, and;

v. not based on effective democratic planning, independent oversight andmeaningful participation.”4

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

2 The new wave of transnational landacquisitions: scope, actors, discoursesand impacts

2.1 Scope of the current land and resource rush

The current land and resource rush is a complex, multifaceted phenomenon, andattempts to quantify its global scope appear as elusive as they are deemednecessary to scrutinize investors’ conduct and impact. The World Bank estimatedin a major 2011 publication that in the year 2009 alone deals covering about 60million ha were announced, while data collected by the International LandCoalition (ILC) and publicized in 2011 indicated that close to 80 million ha ofland had been the object of negotiations with foreign investors over the firstdecade of the twenty-first century.5 In September 2011, the British-based interna-tional non-governmental organization (NGO) Oxfam presented a briefing paper –referring to preliminary research from the Land Matrix Partnership – thatasserted that “as many as 227 million hectares of land – an area the size ofWestern Europe – has been sold or leased since 2001, mostly to internationalinvestors”,6 with most of these deals allegedly concluded in the years 2009–2010.

4 International Land Coalition, Tirana Declaration, 2011, available at: http://www.commercialpres-suresonland.org/sites/default/files/Tirana_Declaration_ILC_2011_ENG.pdf, accessed 17 October2014.5 M. Kugelman, “Introduction”, in M. Kugelman and S. L. Levenstein (eds.), The Global FarmsRace: Land Grabs, Agricultural Investment, and the Scramble for Food Security (Chicago: IslandPress, 2013), pp. 1–20.6 Oxfam, Land and Power: The Growing Scandal Surrounding the New Wave of Investments inLand, 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.

Law and Development Implications of Transnational Land Acquisitions 189



Yet recent data released by the Land Matrix Partnership in January 2014 sub-stantially downsized the scope of the global land rush, with “concluded dealsamount[ing] to a total of 35.7 million hectare[s] of area under contract (withannounced 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 beenrecorded at over 7.1 million ha.8 The United States top the Land Matrix’ list ofinvestor countries, with more than double the size acquired or leased thanMalaysia which follows in second place (Table 1).

The list of top ten investor countries provides evidence of the diversity ofthe land grab phenomenon, with emerging economies (Brazil and India) andGulf countries playing a prominent role alongside former colonial powers,such as the UK and the Netherlands. Two Asia-Pacific countries (Papua NewGuinea and Indonesia) top the list of the ten major target countries,which includes six countries from sub-Saharan Africa. Brazil is the only targetcountry 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 landacquisitions.

Table 1: Top ten investor countries and top ten target countries in the global land rush (landacquisitions, leases and concessions concluded between January 2000 and January 2014)

Investor Countries ha Target Countries ha

1. United States of America 7,095,352 1. Papua New Guinea 3,799,1692. Malaysia 3,349,571 2. Indonesia 3,549,4623. United Arab Emirates 2,819,223 3. South Sudan 3,491,3134. United Kingdom 2,296,669 4. DR Congo 2,717,3585. India 1,990,223 5. Mozambique 2,167,8826. Singapore 1,880,755 6. Brazil 1,811,2367. Netherlands 1,684,896 7. Ukraine 1,600,1798. Saudi Arabia 1,573,218 8. Liberia 1,361,2139. Brazil 1,368,857 9. Sierra Leone 1,191,01310. China/Hong Kong 1,342,034 10. Sudan 1,181,105

Source: Data from Land Matrix Partnership, February 2014.

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-cb24-4db6-aadb-756fb2bd5f88/lm_newsletter_n2_update_feb_2014.pdf, accessed 17 October 2014.8 Ibid., p. 3.

190 A. Neef



While the statistics around the global land rush remain contentious andneed further scrutiny,9 there is a general consensus among scholars, policymakers and development practitioners that the land rush is real, global inscope 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 bebroadly categorized into (1) investors, (2) recipients and (3) intermediaries.

On the investor side, national governments – notably in the Gulf States, inEast Asian countries and the BRICS states – play a major role in driving invest-ments in land and other natural resources in large parts of the Global South. Oneexample is the trilateral agrarian cooperation programme PROSAVANA, led bythe Brazilian government, the Japanese Ministry of Foreign Affairs, the JapanInternational Cooperation Agency, the Mozambique government and a numberof agricultural corporations, which allegedly will lead to the dispossession ofthousands 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 QatarInvestment Authority.11 The first decade of the twenty-first century saw theestablishment of 29 new SWFs, exceeding the number of newly establishedSWFs in the entire second half of the last century.12 SWFs have thus become amajor element in international finance, and their economic power and globaloutreach 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 aboutthe 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 Programmein 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 inAfrica 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 andGlobal Power (Princeton, NJ and Oxford: Princeton University Press, 2013), p. 4.




established Western economies and challenging the hegemonic power of thetraditional Anglo-American financial institutions. While large transnationalcorporations have been among the most notorious investors in overseas landand natural resources for several years, small- and medium-sized biofuel firmsare also quickly becoming major players in the global land rush, encouraged byrecent mandatory biofuel policies in industrialized countries, mostly notably inthe European Union and in the United States.13 Other types of investors includeprivate equity and hedge funds. Prominent hedge fund managers, such asGeorge Soros, Jim Rogers and Michael Burry, have substantially increasedtheir positions in global farmland investments, which they consider as moretangible assets in an increasing volatile global financial system.14 Warren Buffet,CEO of the American multinational conglomerate holding company BerkshireHathaway, has repeatedly expressed his preference for productive farmland overgold.15 International environmental NGOs have also purchased vast amountsof land, dubbed as the “great green land grab”, i.e. the appropriation of forest-land and other natural resources for conservation purposes.16 Evolving interna-tional carbon markets, such as the global REDDþ initiative (Reduced Emissionsfrom Deforestation and Forest Degradations), have attracted a number of refor-estation companies and so-called carbon cowboys that aim at turning conser-vation forests and monoculture tree plantations into lucrative businesses underthe guise of climate-saving investments in the green economy.17

Among the recipients (i.e. targets) of large-scale transnational land acquisi-tions are national governments and state agencies, often in the so-called least-developed countries with weak or bad governance structures and a large shareof 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-at-land-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 GeorgeSoros 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-Soros-are-Interested-in-Farmland.html, accessed 23 April 2014.15 M. Fairbairn, ‘Like Gold with Yield’: Evolving Intersections between Farmland and Finance, 41The Journal of Peasant Studies, no. 5 (2014), 777–795.16 J. Fairhead, M. Leach and I. Scoones, Green Grabbing: A New Appropriation of Nature?, 39The 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 GreenMythology?, 4 Environmental Communication, no. 1 (2010), 37–53; Ernsting (2014), supra note 13.

192 A. Neef



continent, Bush et al. (2011) maintain that “[s]tates should exist to guarantee theprotection of their citizens from foreign expropriation. Instead, for reasons ofweakness or venality, or because the political class has direct interests in theoutcomes, they often facilitate land deals which dispossess large swathes oftheir people.”18 Some governments may invite large-scale investors to overcomethe lack of investment in rural areas and to exploit allegedly “underutilized”areas. Another motivation for national governments to encourage transnationalland acquisitions is to make the rural landscape legally legible through acombination of territorialization and privatization.19 In some countries thathave undergone a major decentralization process in recent years, such asIndonesia, regional governments at provincial or district level may be targetedby investors. Several African countries and small island nations in the Pacifichave provided legal recognition of customary land rights through their constitu-tions and land legislations, often with chiefs as the holders of legal title andtraditional councils as land administrators. Although the alienation of custom-ary land tends to be restricted by law, traditional authorities oftentimes hold thelegitimate power to negotiate with investors over leasehold terms.20 By contrast,local communities, that are also on the recipient side of investments and haveto bear their consequences in the most direct sense, are rarely involved innegotiations over the use of their land and other natural resources that theyoften hold under communal management.

Among the intermediaries – i.e. those actors that play a major role inpromoting, brokering or financing transnational land acquisitions – featureinternational development banks and aid agencies that have promoted inves-tor-friendly policies and legislative frameworks in many countries of the GlobalSouth. 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 underattack by a number of advocacy groups when its Secretary General called forlarge-scale agricultural and land investments in a co-authored contribution tothe Wall Street Journal. While both the World Bank and the FAO have alsoadvocated 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 ofPeasant 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 DevelopmentStudies, no. 2 (2014), 187–203.21 B. White, S. M. Borras Jr., R. Hall, I. Scoones and W. Wolford, The New Enclosures: CriticalPerspectives on Corporate Land Deals, 39 The Journal of Peasant Studies, no. 3–4 (2012), 619–647.




involved in major international initiatives to regulate the global land rush,22

some of their representatives have provided and reinforced discursive justifica-tions for large-scale, transnational land deals.23 Internationally operating com-mercial banks are another major group of intermediaries in transnational landacquisitions. Germany’s Deutsche Bank and Australia’s ANZ, for instance, haverecently been condemned by human rights organizations and internationalmedia for financing companies involved in large-scale land grabs and violentevictions of local communities in Cambodia and Laos.24 In the case of greengrabbing, eco-certification providers can play a major role in brokering trans-national land acquisitions.

The above list of actors implicated in the global land rush is certainly notexhaustive, but it gives an indication of the diversity and complexity of the actorlandscape.

2.3 Discourses and narratives around transnationalland acquisitions

The discursive justification for transnational land transactions comprises awhole set of arguments, most notably (1) the need for investment in ruralareas to increase agricultural productivity, provide new job opportunities andalleviate rural poverty (the development narrative), (2) the urgency of addres-sing various major global crises, most notably those around food, water, energy,and climate (the crisis narrative), (3) the availability of unused or under-utilized land that could be brought into (more) productive use (the idle landnarrative) and (4) the superiority of capital-intensive, large-scale agricultureover semi-subsistence smallholder farming (the efficiency narrative).

22 The World Bank has developed seven Principles for Responsible Agro-Investment, while theFAO has played a major role in the development of the Voluntary Guidelines for Responsible onthe Responsible Governance of Land, Fisheries and Forests (see various articles in this specialissue).23 C. Oldenburg and A. Neef, Reversing Land Grabs or Aggravating Tenure Insecurity? CompetingPerspectives on Economic Land Concessions and Land Titling in Cambodia, 7 Law andDevelopment Review, no. 1 (2014), doi:10.1515/ldr-2014-0014.24 Global Witness, How Vietnamese Companies and International Financiers Are Driving a LandGrabbing Crisis in Cambodia and Laos (May 2013), available at: http://www.globalwitness.org/rubberbarons, accessed 17 October 2014; Inclusive Development International, ANZ BankrollsMassive Land Grab in Cambodia (January 2014), available at: http://www.inclusivedevelopment.net/anz-bankrolls-massive-land-grab-in-cambodia, accessed 17 October 2014.

194 A. Neef



Foreign investors, in particular, tend to emphasize the alleged superiority oflarge-scale agriculture in addressing the global food security problem. Gary R.Blumenthal, president and chief executive of the agricultural consultancy WorldPerspectives, Inc., for instance, asserts that “meeting the food requirements of alarger and wealthier world population requires scale and capital investment.Using smallholdings agriculture as a development policy is like promising anautomobile to everyone in the world, but limiting construction to hand labor.The principles of industrialization and mass production for increasing produc-tivity apply as much to agriculture as they do to nonagricultural goods.”25 In asimilar vein, Phil Riddell – a director of an “investment advisory boutique”targeted at commercial African agriculture – holds that “it is absurd that thecase of the small farmer is prioritised so rabidly over the bigger picture and all itrepresents in terms of food security, employment and economic growth; andthis despite small farmers’ increasing irrelevance to national, regional andglobal food security.”26 Yet even the World Bank – a major player in globalagribusiness development – contends in a recent publication that “there is nostrong case to replace smallholder with large-scale cultivation on efficiencygrounds.”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 asopposed to 71% of holdings that were larger than 3 ha.28 This suggests that evenmoderate forms of land concentration can go along with a significant lossof productivity. Also in Cambodia – a major target of transnational landacquisitions – it was found that less than 10% of large-scale economic landconcessions were actually under operation.29 A study of six African countriesconducted in 2009 by FAO, the International Institute of Environment andDevelopment and the International Fund for Agricultural Developmentfound 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.), TheGlobal 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 inEmerging Markets”, in T. Allan M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook ofLand 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 EquitableBenefits? (Washington, DC: World Bank, 2011).28 Oxfam, Report on Land Holding in Cambodia (Phnom Penh: Oxfam GB Cambodia Land andFishery Programme, 2007).29 A. Fforde and K. Seidel, Donor Playground Cambodia? What a Look at Aid and Developmentin Cambodia Confirms and What It May Imply (Berlin: Heinrich-Böll-Stiftung, 2010).




only 10–15% of the land was actually developed.30 These studies cast doubton the justification for large-scale land acquisitions and concessions on produc-tivity or efficiency grounds. Smallholder cultivation obviously has advantageson equity grounds, with smallholders’ income being between 2 and 10 timeshigher than what can be obtained from wage employment.31 De Schutter (2011)maintains that of the around 450 million people employed as agricultural work-ers on plantations globally about 200 million are estimated to be “food inse-cure”.32 There are also major arguments put forward against the dominantdiscourse that only large investors can stem the investments and have thesuperior technological means needed for establishing agro-industrial planta-tions. It was stated, for instance, that smallholder farms of 2–3 ha make upabout 80% of world rubber production.33 Prior to the recent wave of transna-tional land acquisitions, small-scale oil palm cultivation in Southeast Asia andWest Africa thrived alongside larger plantations and were highly productive andprofitable.34

Yet reducing the discourse around transnational land acquisitions andlarge-scale vs. small-scale farming models to questions of efficiency and pro-ductivity risks ignoring the cultural significance of land and the important socialand 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 forproductive purposes, but holds important spiritual and socio-cultural meaningsand values.

30 G. Da Silva, Statement prepared for the Global Land Grabbing II International AcademicConference at Cornell University, Ithaca, United States, available at: http://www.cornell-land-project.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-ScaleInvestments 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 ofAgricultural 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 OilPalm Plantation Sector in Riau Province, Sumatra”, in O. Pye and J. Bhattacharya (eds.), ThePalm Oil Controversy in Southeast Asia: A Transnational Perspective (Singapore: Institute ofSoutheast Asian Studies, 2013), pp. 76–96; D. Byerlee, “Are We Learning from History?”, inM. Kugelman and S. L. Levenstein (eds.), The Global Farms Race: Land Grabs, AgriculturalInvestment, and the Scramble for Food Security (Chicago: Island Press, 2013), pp. 21–44.

196 A. Neef



2.4 Impact of transnational land acquisitions on localcommunities and the environment

While proponents of large-scale transnational land acquisitions point to a rangeof benefits that these investments may entail for host countries and local com-munities – most notably the modernization of agriculture, the revival of ruraleconomies, and the improvement of infrastructure – “there have been shock-ingly few examples of projects that offer real benefits to local populations, oreven to host governments”.35 A number of land deals have in fact provided newjob opportunities for rural people, but many of these jobs may be seasonaland/or low-wage only.36 Others have included compensatory measures, suchas provision of wells, health stations or school buildings. In most recordedcases, however, customary land rights of farmers, pastoralists, hunters andgatherers, fishermen and other occupational groups with high dependency onnatural resources have been compromised by large-scale land deals.Dispossession, semi-proletarianization, forced resettlement and increased socialconflicts are among the most commonly noted impacts of transnational landacquisitions.37 Women tend to be particularly hard hit by large-scale land deals,especially in cases where forests or other essential communal resources areaffected, as they may lose their traditional access to medicinal plants, wild fruitsand nuts, fuel, bamboo shoots and other non-timber forest products.38

According to data from the Land Matrix Partnership, more than a quarter ofthe recorded land deals, where detailed data on previous land use was available,occurred on previously forested land (Figure 1). Smallholder agriculture andpastoralists together were affected by roughly another quarter of the deals.Yet, more surprisingly, nearly half of the land acquisitions replaced otherforms of commercial (large-scale) agriculture. Although this information covers

35 A. Spieldoch and S. Murdoch, “Social and Economic Implications”, in M. Kugelman andS. L. Levenstein, The Global Farms Race: Land Grabs, Agricultural Investment, and the Scramblefor 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 andEthics of Land Concessions in Rural Cambodia, 26 Journal of Agricultural and EnvironmentalEthics, no. 6 (2013), 1085–1103; Oldenburg and Neef (2014), supra note 23; for a globalperspective, 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.




only about 22% of the overall land deals registered in the Land Matrix databasedue to the opaque nature of such transactions, these figures put the develop-ment narrative of the proponents of large-scale land acquisitions under intensescrutiny.

While most studies investigating the impact of the global land rush havehighlighted the social and economic implications for local communities, theenvironmental impact of these land deals has received less attention, and resultshave been somewhat inconclusive.39 Where the production of agro-biofuels(e.g. jatropha, soybean and palm oil for biodiesel) has been the major focus ofinvestors, the environmental impact is likely to be negative, due to the high water-footprint of these crops40 and – in the case of palm oil – the widespread conver-sion of forest- and peat-lands into plantations in Indonesia and Malaysia.41

Commercial(large-scale)agriculture

47%

Smallholderagriculture

18%Pastoralists6%

Forestry27%

Conservation2%

Figure 1: Former land use of acquired or leased land (in % of totally recorded area fromJanuary 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).

39 L. A. German, W. M. J. Achten and M. R. Guariguata, “Environmental Impacts”, inKugelman, M. and S. L. Levenstein (eds.), The Global Farms Race: Land Grabs, AgriculturalInvestment, 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 ofBioenergy, 106 Proceedings of the National Academy of Sciences, no. 25 (2009), 10219–10222.41 See, e.g., German et al. (2013), supra note 39.

198 A. Neef



3 Adopting a law and development perspective onthe global land and resource rush

Most of the scholarly work on transnational land acquisitions and leases inthe last few years has been conducted by political economists, developmentgeographers, anthropologists and sociologists. The contributions in this specialissue analyse the global land and resource rush through a law and developmentlens. The articles are based on selected papers from the Law and DevelopmentConference 2013 “Legal and Development Implications of International LandAcquisitions, 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 inthe intersection of law and ethics, while the “Voluntary Guidelines forResponsible Governance of Land, Fisheries and Forests” – a soft law developedunder the leadership of the FAO and discussed in a number of articles in thisspecial issue regarding its effectiveness of containing the global land rush – hasobvious links to issues of Corporate Social Responsibility and business ethics.International Investment Law has links to the domain of politics, as it has strongimplications for bilateral relations between investor countries and host countriesand also pertains to a number of geopolitical issues. The interface between lawand development is evident in the controversial social and economic impacts oftransnational land acquisitions which operate within a complex and ambiguouslegal field of national land legislation, customary/indigenous law and privateproperty rights.

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




The articles in this special issue explore the law–development–ethics–pol-itics nexus from various perspectives. The first article written by Liz Alden Wilystarts with an historical overview of land grabs, arguing that land rushes haverarely been lasting phenomena and have not been able to completely eradicatelocal land rights in the past. Alden Wily then discusses the role of law in thepresent surge in transnational land acquisitions. She argues that communallyowned and managed off-farm assets, such as forests and rangelands, are themajor targets in the current land rush, unravelling stark contradictions in themeaning of property and bringing the conflicts between customary and statutoryland law into the limelight. Drawing on a number of countries in sub-SaharanAfrica, she holds that while the wave of transnational land acquisitions maythreaten the traditional rights of millions of African peasants and pastoralists,they also occur in an era of increased global advocacy and enhanced means ofcommunication and empowerment which could instigate a major countermove-ment that challenges dispossessory mechanisms of corporate capitalism andmay provide new opportunities to promote the legal recognition of hithertounregistered customary rights.

The paper by Salim Farrar discusses the growing investments of Arabcountries in large-scale farm operations in sub-Saharan Africa, most notably inSudan, South Sudan, Mali, Mauritania and Ethiopia. He argues that Arab landacquisitions cannot be classified as neo-colonialist land grabs, but should ratherbe seen as a deliberate shift of several African governments to export-led growthstrategies through the renewal of historical and cultural linkages with the Arabworld. In these partnerships between equals, food security of Arab countries isenhanced in exchange for strategic rural development in the African hostcountries. While Farrar acknowledges that such partnerships have had adverseeffects on rural communities and in some cases provided access to the hostcountries for missionary extremist groups, he does not advocate a generalopposition to large-scale land investments by Arab governments, but rathercalls for a close monitoring of such deals by the international community andthe drafting of an Islamic ethical code of conduct in land investments.

The article by Emel Zerrouk and Andreas Neef explores the media dis-courses surrounding land grabs and local resistance associated with the expan-sion of the Letpadaung copper mine in Myanmar. The authors’ analysis pertainsto how domestic and international media have over time shifted emphasis oncertain themes related to this highly contentious land grab case under a rapidlychanging legal framework. After describing the history of the mine and discuss-ing recent changes to Myanmar’s national land tenure regime, the authors showthat the conflict and related protests and media reports were originally centredon land grabbing, (the lack of) compensation and environmental concerns. With

200 A. Neef



enhanced civil and press freedoms under new legislation, the Letpadaung landgrab was discursively transformed from a localized struggle for the protection ofpeople’s land and labour rights to a national test of Myanmar citizens’ rights toprotest without fear of repression.

The contribution from Perry Bechky looks into recent developments ininternational adjudication of land disputes under the International Centre forSettlement of Investment Disputes. He argues that the question whether aforeign investment made a “contribution to development” in a host countryshould not be an issue in international adjudication cases, because (1) theword “investment” does not include “contribution to development” in itsusual meaning, (2) tribunals are not in a position to judge whether an invest-ment actually contributed to “development”, however this is defined and (3) itwould affect smaller investors disproportionately because of the difficulties ofproviding proof that their small investment made a significant contribution todevelopment of the host state. In the second part of the article, Bechky draws onrecent adjudication cases involving the Zimbabwean government to discuss thetrend towards transnationalism, where international investment law is intri-cately linked with human rights law. He concludes that under an appropriatelegal infrastructure international adjudication of land disputes may be able tomake 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 Governanceof Land, Fisheries and Forests”, arguably the most comprehensive internationalattempt to contain the global land and resource rush. The authors argue thatthe Voluntary Guidelines – grounded in international human rights law anddesigned as an instrument of soft law through a consultative process involvingmany civil society groups – rightfully acknowledge the customary rights ofwomen, peasants, fishing communities, pastoralists and indigenous peoples,but fall short on a number of crucial issues, most notably by omitting water asa land-related resource that is critical for the livelihoods of millions of ruralpeople. Paoloni and Onorati also maintain that the Voluntary Guidelines donot provide a sufficiently comprehensive regulatory framework to effectivelygovern transnational land acquisitions. Nevertheless, they conclude that theVoluntary Guidelines are an important first step towards the full recognitionand legal protection of people’s rights to land, fisheries and forests.

Fantu Farris Mulleta, Pierre Merlet and Johan Bastiaensen adopt a legalpluralism perspective in their analysis of large-scale land acquisitions and leasesin Ethiopia. They demonstrate how the Ethiopian state has imposed a legalcentralistic conception of the law by declaring itself the sole statutory providerof private and communal rights, thereby disregarding the multifunctional




character of land and the multiple norms, values and claims underlying itsgovernance at the local level. Mulleta, Merlet and Bastiaensen argue that theregulatory approach to land deals is unlikely to be effective in controlling landdeals in Ethiopia because (1) it does not address the power asymmetries under-lying large-scale land transactions, (2) it maintains a focus on the state as solelegislative institution and (falsely) regards it as a neutral actor that aims atmaximizing social benefits among its citizens and (3) it ignores the existence ofcompeting bilateral and international principles and frameworks. The authorsadvocate initiatives that aim at identifying and redressing social and institu-tional imbalances and inequities with regard to land rights and at enhancing thevisibility and voice of the poor in their struggle to enforce their customary claimsto land and other natural resources.

Michael Brüntrup, Waltina Scheumann, Axel Berger, Lidija Christmannand Clara Brandi explore the use of various international governance frame-works that have been proposed to regulate transnational land acquisitions.The authors argue that a major prerequisite to successfully regulating large-scale land deals is to recognize their complexities, such as (1) the connectionbetween land and water acquisitions, (2) the fact that domestic investors may bemore prominent than foreign ones in some countries, (3) the difficulty of dis-cerning between illegal land grabs and legitimate and fair land transactions and(4) the differential impacts that large-scale land acquisitions can have on var-ious groups within the local communities, e.g. women, migrant groups andethnic minorities. Their detailed comparative analysis of international legalinstruments relevant to large-scale land acquisition and leases suggests thatno singular approach can effectively address the complex challenges and driv-ing forces involved in the global land rush. Yet, despite their shortcomings andinherent overlaps and ambiguities, the authors maintain that implementingthem collectively is likely to improve processes and outcomes of large-scaleland deals and would help mitigate their most detrimental impacts on thepoor and marginalized.

In the final article of this special issue, Uche Ewelukwa Ofodile exploresthe interface between transnational land acquisitions, bilateral land investmentagreements and international investment law. She argues that bilateral invest-ment treaties (BITs) do not address key environmental, social and governanceissues inherent in largescale transnational farmland acquisitions and thereforeimpose serious constraints on host governments’ leverage to regulate suchinvestments in the public interest. Drawing on a number of examples fromsub-Saharan Africa, her analysis reveals substantial asymmetries in existingBITs, most of which grant foreign investors a range of substantive and proce-dural rights without imposing on them any binding obligations and without

202 A. Neef



making any references to human rights, environmental treaties or any otherrelevant international laws. Ofodile calls for more effective domestic legal andinstitutional frameworks as major prerequisites for governing the land rush insub-Saharan Africa.

We hope that the articles in this special issue will provide new perspectiveson the global and local dimensions of transnational land acquisitions and sparkmore scholarly interest in adopting a law and development perspective to theglobal 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.), TheGlobal Farms Race: Land Grabs, Agricultural Investment, and the Scramble for FoodSecurity (Chicago: Island Press, 2013).

Bush, R., J. Bujra and G. Littlejohn, Editorial: The Accumulation of Dispossession, 38 Review ofAfrican Political Economy, no. 128 (2011).

Byerlee, D., “Are We Learning from History?”, in Kugelman, M. and S. L. Levenstein (eds.), TheGlobal Farms Race: Land Grabs, Agricultural Investment, and the Scramble for FoodSecurity (Chicago: Island Press, 2013).

Clark, G. L., A. D. Dixon and A. H. B. Monk, Sovereign Wealth Funds: Legitimacy, Governanceand Global Power (Princeton, NJ and Oxford: Princeton University Press, 2013).

Da Silva, G., Statement prepared for the Global Land Grabbing II International AcademicConference at Cornell University, Ithaca, United States, available at: http://www.cornell-landproject.org/wp-content/uploads/2012/10/graziano_statement.pdf, accessed17 October 2014.

De Schutter, O., How Not to Think of Land Grabbing: Three Critiques of Large-Scale Investmentsin Farmland, 38 The Journal of Peasant Studies, no. 2 (2011).

Edelman, M., Messy Hectares: Questions about the Epistemology of Land Grabbing Data, 40 TheJournal 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-new-look-at-land-grabs-in-the-global-South-linked-to-EU-biomass-policies.pdf, accessed17 October 2014.

Fairbairn, M., ‘Like Gold with Yield’: Evolving Intersections Between Farmland and Finance, 41The Journal of Peasant Studies, no. 5 (2014).

Fairhead, J., M. Leach, and I. Scoones, Green Grabbing: A New Appropriation of Nature? 39 TheJournal of Peasant Studies, no. 2 (2012).

Fforde, A. and K. Seidel, Donor Playground Cambodia? What a Look at Aid and Development inCambodia 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-




trading-reports/Why-Investors-such-as-Jim-Rogers-and-George-Soros-are-Interested-in-Farmland.html, accessed 23 April 2014.

Funada-Classen, S., Analysis of the Discourse and Background of the ProSAVANA Programme inMozambique – 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 landgrabbing 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: FutureAgricultures, 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-land-grab-in-cambodia, accessed 17 October 2014.

International Land Coalition, Tirana Declaration, 2011, available at: http://www.commercial-pressuresonland.org/sites/default/files/Tirana_Declaration_ILC_2011_ENG.pdf, accessed17 October 2014.

Kugelman, M., “Introduction”, in Kugelman, M. and S. L. Levenstein (eds.), The Global FarmsRace: 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-aadb-756fb2bd5f88/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-disposses-sion/5356768, accessed 23 April 2014.

Nagata, J. and S. W. Arai, “Evolutionary Change in the Oil Palm Plantation Sector in RiauProvince, Sumatra”, in Pye, O. and J. Bhattacharya (eds.), The Palm Oil Controversy inSoutheast Asia: A Transnational Perspective (Singapore: Institute of Southeast AsianStudies, 2013).

Neef, A., S. Touch and J. Chiengthong, The Politics and Ethics of Land Concessionsin 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 GreenMythology?, 4 Environmental Communication, no. 1 (2010).

Oldenburg, C. and A. Neef, Reversing Land Grabs or Aggravating Tenure Insecurity? CompetingPerspectives on Economic Land Concessions and Land Titling in Cambodia, 7 Law andDevelopment Review, no. 1 (2014), doi:10.1515/ldr–2014–0014

204 A. Neef



Oxfam, Report on Land Holding in Cambodia (Phnom Penh: Oxfam GB Cambodia Land andFishery Programme, 2007).

Oxfam, Land and Power: The Growing Scandal Surrounding the New Wave of Investments inLand, 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 July2014.

Pearce, F., The Land Grabbers: The New Fight Over Who Owns the Earth (Boston, MA: BeaconPress, 2012).

Peluso, N. L. and C. Lund, New Frontiers of land Control: Introduction, 38 The Journal of PeasantStudies, no. 4 (2011).

Riddell, P., “‘Land Grabs’ and Alternative Modalities for Agricultural Investments in EmergingMarkets”, in Allan, T., M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook of Land andWater Grabs in Africa Foreign Direct Investment and Food and Water Security (London andNew York: Routledge, 2013).

Schoneveld, G. C. and L. German, Translating Legal Rights into Tenure Security: Lessons fromthe 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: Methodologiesfor 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. andS. L. Levenstein (eds.), The Global Farms Race: Land Grabs, Agricultural Investment, andthe Scramble for Food Security (Chicago: Island Press, 2013).

Von Braun, J. and R. Meinzen-Dick, “Land Grabbing” by Foreign Investors in DevelopingCountries: Risks and Opportunities. IFPRI Policy Brief 13 (Washington, DC: InternationalFood Policy Research Institute, 2009).

White, B., S. M. Borras Jr., R. Hall, I. Scoones and W. Wolford, The New Enclosures: CriticalPerspectives 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”, inAllan, T., M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook of Land and Water Grabsin 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).




Article

Liz Alden Wily*

The Law and Land Grabbing: Friendor Foe?

Abstract: This paper reflects upon the role of law in the contemporary surge inglobal large-scale land acquisitions. Its point of reference is the land security ofseveral billion rural poor who traditionally own and use untitled lands that areclassified as state lands or unowned public lands in national laws. Most of theaffected 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 ownerand despite awareness that these lands are occupied and used. Despite the long-standing nature of such conflicts as well known and long debated, the presentland rush brings unresolved contradictions between statutory and customary lawand associated meanings of property firmly to the fore. Using Sub-Saharan Africaas the example, this paper examines the legal effects. It is shown that whilemillions of local land rights are threatened, the land rush also vitalises demandsfor improved national law status for unregistered customary rights, includingthose 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 tomajority land rights in agrarian economies. This is partly because the currentrush, unlike those that have gone before it, occurs in an environment of advancedpopular communication, emergent mass empowerment, and has the advantage ofa pre-rush era of legal improvement in the handling of indigenous and customaryland rights that has established alternative precedents. Opportunities to coercemodification 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 trans-formation, 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]

LDR The Law and Development Review 2014; 7(2): 207–242



1 Introduction

The global land rush refers to the surge in large-scale land acquisitions indeveloping economies triggered by the oil, food supply, and financial crises of2006–2008.1 Although land buy-ups by local companies and individual entre-preneurs are closely intertwined with the surge in foreign acquisitions, the latterare more prominent in terms of scale and implications, inter alia generatingcharges of new forms of colonialism. Objectives of large-scale acquisitionsremain mixed, ranging from genuine intentions to produce food and biofuelcrops at scale as a hedge against unstable commodity markets, to speculativeacquisitions encouraged by availability of surplus cash withdrawn from enter-prises 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 ofmainly adverse publicity,3 advisories issued by international organisations cau-tioning investors and host governments against wilful removal of people fromtraditional lands,4 a gathering number of early failures of schemes reminiscentof 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: InternationalInstitute for Environment and Development, CIRAD and International Land Coalition, 2012).Available at: <http://www.landcoalition.org/publications/tragedy-public-lands-fate-commons-under-global-commercial-pressure>

Also refer to Land Matrix Project and Data: <http://www.landmatrix.org/get-the-idea/agri-cultural-drivers/>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<http://landportal.info/landmatrix/get-the-detail#analytical-report>3 R. Palmer, Select Bibliography (1) on Reports on Biofuels, Land Rights in Africa and GlobalLand Grabbing, 2006–2013 (Oxford: Mokoro Ltd, 2013), available at: <http://www.mokoro.co.uk/files/13/file/landgrab_select_bibliography_1_reports_july_2013.pdf>4 UNCTAD, FAO, IFAD and The World Bank, Principles for Responsible Agricultural Investment(PRAI) (Seoul, 2010), available at: <http://unctad.org/en/Pages/DIAE/G-20/PRAI.aspx> andVoluntary Guidelines on Responsible Governance of Tenure (Rome: FAO and others, 2011),available at: <http://www.fao.org/docrep/016/i2801e/i2801e.pdf>. Also refer The MundenProject, 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: <http://www.kysq.org/docs/Ramaswamy.pdf>, accessed 1 May 2013; and J. Hopma, Planning in the Wind: TheFailure of Jordanian Investments in Sudan (Brighton: Land Deal Politics Initiative Working PaperNo. 22, 2013).

208 L. Alden Wily LDR



mounting protest by evicted populations or those alarmed at the possibility ofthis occurring as a consequence of local lands being allocated to large-scaleenterprises.6 This suggests the rush is less malleable than pro-poor developmentadvocacy might like and that the trend continues to secure traction with nationalgovernments 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 watertakings which large-scale estate farming promises to generate; host governmentsare apparently still content to lease out their lands (or more correctly, the landsof their people) for paltry amounts, and to assure large-scale users access towater at low to zero cost.7

Meanwhile the rush itself is better appreciated each year as a more amor-phous and complex event than seemed the case following global oil and foodprice hikes in 2006–2008. Its reach is now accepted as encompassing conces-sions for extraction of oil and gas, minerals, timber, water, and for carbonsequestration posing as conservation (the green grab); less one-way in north/south orientation; and more global in its reach than early focus upon Africa andAsia suggested.8 Although opportunistic, links are also now being made withthe lows and highs in a continuing process of land concentration withinEurope.9

The above link into the main context of this paper which aims to illustratethe 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 expandingand also ever-globalising capitalism.10 In this framework, land rushes are iden-tifiable as periodic and predictable events, representing bouts of primitiveaccumulation of lands and resources by elites in agrarian economies, usually

6 “Largest Liberian oil palm project is failing locals: study” (Reuters, 22 March 2013), availableat: <http://www.reuters.com/article/2013/03/22/us-editor-liberia-veroleum-palmoil-idUSBRE92L0Y520130322>7 T. Allan, Introduction: Can Improving Returns to Food-Water in Africa Meet African Food Needsand 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 WaterSecurity (London and New York: Routledge, 2013), pp. 1–8.8 S. Borras, C. Kay, S. Gomez and J. Wilkinson, Land Grabbing and Capitalist Accumulation: KeyFeatures 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 LandNetwork, Land Concentration, Land Grabbing and People’s Struggles for Land (Amsterdam, 2013),available at: <http://www.tni.org/sites/www.tni.org/files/download/land_in_europe-jun2013.pdf>10 H. Bernstein, Class Dynamics of Agrarian Change (Halifax, Winnepeg, and Virginia:Fernwood Publishing and Kumarin Press, 2010).

LDR The Law and Land Grabbing: Friend or Foe? 209



with the active support of governments with whom private enterprise in lessdeveloped polities is often linked in personal ways.11

In respect of Sub-Saharan Africa, Issa Shivji, prefacing able research byPatnaik 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 ironrule of five centuries of capitalism has consistently delivered accumulation atone end of society and pauperisation at the other; second, that Africa hasendured the greatest social devastation in this process, inclusive of millions ofits people being sold into slavery to support growth in other continents andsteady pillage since of its land, forests, minerals, water, and bioresources; andthird that accumulation by dispossession lies so fundamentally at the heart ofthe world system of capitalism that the capitalism system itself must be held asprimitive.12 While Shivji, Patnaik, and Moyo urge abandonment of this mode of“barbarous” growth, we can here be more practically warned that outrightderailment of its path will be difficult. The research of Lee Peluso and Lundon governance issues associated with this current phase of social transforma-tion, of Murray Li on its labour dynamics, and of McMichael on changing foodsupply regimes, which often drive surges in capitalist growth, tend to confirmdifficulties in countering what seems like the inevitability of mass dispossessionof rights and resources in social transformation.13 Descriptive accounts of howthe 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 itselfand in the process offers a less pessimistic future. It is argued that in the sameway as state law has been put to work to legitimise mass land takings, withactive awareness and prompt action, it could be put to work to serve majorityland interests and restructure if not halt longstanding legal conventions in thisarea. In exploring this, the paper is less interested in the classical central groundof 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 forInterpreting 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 NeoliberalEra 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 ofPeasant Studies, no. 4 (2011) 667–681; T. Murray Li, Centering Labor in the Land Grab Debate, 38The Journal of Peasant Studies, no. 2 (2011), 281–298; P. McMichael, Land Grabbing as SecurityMercantilism 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, 10Globalizations, no. 1 (2013), 161–179.




greater space which is occupied by off-farm resources, and which are so con-sistently and characteristically deemed by statutory property law to be effec-tively unowned, and even unownable. This is profoundly contradicted by localreality and by the terms of indigenous or customary land norms, which on thecontrary locate collectively possessed forests, rangelands, and marshlands asdeeply central to the property norms of rural communities.

The precise objective of this paper is to examine whether the contemporaryland rush is deepening this legal contradiction further. In the course of this, asalient 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 bylarge-scale land enterprise. Nor do they, or the contextual political and eco-nomic transformations from which they descend, appear to successfully extin-guish local land rights in their entirety. For example, despite a century ofharshly suppressive state land law in South Africa, Zimbabwe, and Namibia,customary land claims have ultimately proved sufficiently resilient to requireexpensive compensation and restitution schemes.15 These well-known casesalso illustrate the inextricable relationship of land and property rights withsocio-economic and political rights, locating the issue firmly in the sphere ofgovernance. The fact that remedies in those cases are still far from deliveredafter two decades also reminds us of the tenacity of contrary dispossessorynorms and that pro-majority tenure reforms are difficult to secure in practice.

A subtle transformation in rights themselves underwrites these battles overland and associated wealth and power, and which broadly play out as contesta-tion between people and the state, and their respective national and localsystems for protecting the private possession of lands. Thus, when communitylandholders are confronted with challenges as to their rights, they often respondexpediently by reconstructing their rights in the image of better-protected stat-utory entitlements, including claims of absolute possession and tradability.While this principally requires a buy-in by communities into notions of landas a disposable commodity, and associated individualisation, it also promptsshifts in the meaning of property as real property without necessarily beingtradable. This is especially important in respect of communal resources, whereinthe community is a continuing social entity over time. How modern tenure law

15 For South Africa refer <http://www.plaas.org.za/blog/unworkable-land-reform-project-designs-offer-inappropriate-farming-models-rural-dwellers> and <http://www.plaas.org.za/plaas-publication/farm-workers-%26dwellers> and <http://www.plaas.org.za/plaas-publication/FC03>;for Zimbabwe: <http://www.plaas.org.za/plaas-publication/ldpi-20>; for Namibia: <http://www.lac.org.na/projects/lead/Pdf/livelihoods_report_a.pdf> and <https://www.bon.com.na/CMSTemplates/Bon/Files/bon.com.na/d2/d2d1748a-1e9f-4b9a-8291-94c8589e52d7.pdf>




handles those generally off-farm assets is the area where most contention andalteration is being experienced today, along with shifts in the understanding ofcommunities 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 iswrongful but legal dispossession of poor rural communities at scale, there iscountering potential for populations to challenge and refashion this path. Theirsuccess would not so much halt the land rush as coerce shifts in its modusoperandi to modify its dispossessory effects. Key indicators to keep watch uponwill be how far legal classification of lands as state properties rises or declinesas a proportion of total country areas in favour of acknowledged communityowned lands; how far industrial land developments evolve on the basis ofleasing directly from communities, rather than from governments, and how farnewly acknowledged community landowners are included as shareholders incommercial land developments where their lands are being used. Even a limitedshift towards these innovations would mark an important turning point towardsmore popularly inclusive routes of land-based growth. The direction of modernland law on these matters is crucial.

2 Land rushes and the law

This is not least because, with exceptions, the dominant norm in nationallegislation globally is, as suggested earlier, that lands not formally titled arenot state-acknowledged real property. This leaves millions of rural dwellerstechnically landless, permissive occupants on land acquired through non-state community-based regimes, usually termed customary or indigenoustenure regimes. National laws generally override interests delivered throughsuch regimes. In the absence of acknowledged owners, affected lands usuallyfall to government as its private property (and particularly where these landsare forested or included marshlands), as national property under its trust, oras public lands, which again the state may allocate as if empty of existingowners.

While uncertainty of rights may prevail for generations, surges in stateallocation of such domains bring the contradictory claims of customary andstatutory tenure to the fore. This is what is occurring in the current landrush, for it is mainly such lands that are being handed over at scale toinvestors or speculators, in pursuit of classical visions of domestic andglobal growth.




Untitled but customarily occupied or used lands that could be affected bythe current (or subsequent) land rushes are significant in area. It is well toremember that only 11% of the world’s land surface is cultivated, the greaterresource being off-farm lands, and over which thousands of communities sus-tain communal norms of possession, access, and use.16 The roles that such off-farm lands play in household economies range from being significant to repre-senting the major source of livelihood.17 In terms of area, such assets comprise8.5 billion ha, excluding waters, foreshores, and extreme deserts, of which 2.35billion hectares (ha) are located in Sub-Saharan Africa. Less than 10% of thisarea is privately titled and accordingly outside the customary sector.18 Cities andtowns 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 forest-lands, rangelands,20 and wetlands. Some 320 million ha of this has already beenwithdrawn from community jurisdiction as gazetted national parks and reserves,a process that normally extinguishes customary rights. An unknown part of theremainder is genuinely unowned, in the sense of being beyond the historical orpresent jurisdiction of any one rural community. This still leaves a potential 1.6billion ha of contradictory customary-statutory claim, which the land rush nowbrings into clearer contestation.

Significant parts of these lands were already leased out prior to the currentland rush, mainly under extractive concessions to oil, gas, timber, and miningcompanies. For example, half the country areas of Cameroon and Gabon weresubject to logging and concessions by 2005, overlaid by concessions for explora-tory or extractive mining.21 As elsewhere in the continent millions of people livewithin these areas, depend upon them for livelihood, and claim them as histori-cally and contemporarily their collective property, the dictates of national prop-erty 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 LandCoalition, 2011).17 L. Emerton, Quantifying the Impacts of Barriers to Pro-Poor Forest Management, Livelihoodand Landscape Strategy (Gland: IUCN, 2010).18 Mainly absorbed by the “white” farms of South Africa, Zimbabwe, and Namibia, with 27% ofKenya also under private title. Elsewhere, titled lands often comprise less than 5% of the totalcountry 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-on-Marsh, FERN, 2011).




2.1 Global adoption and entrenchment of dispossessoryland law

A background word must be said on how the contradictions between customaryand statutory tenure norms have come about. In brief, these have origins in thestate-making norms of European states, whereby kings sought control over asmuch land as possible to bolster their authority and their treasuries. Englishland law, for example, evolving through the creation of the post-indigenousNorman feudal state from the eleventh century, reconstructed land ownership asa lien or gift of the King, separating possession by commoners from legal titleawarded to elites in return for their military and financial support.22 Land taxesin turn provided the core of state revenue and its survival. By 1436 nearly half ofEngland’s lands were controlled by 51 barons, inextricably bound to the state,precisely because their land assets were dependent upon sustained state recog-nition of their tenure.23

In due course English kings would pursue offshore the same land-capturingcolonialism its indigenous populations endured, most notably in Ireland in theearly seventeenth century. In 1608, for example, the King Court in Londonreconstructed the meaning of local Irish customary land law and rights asamounting to less than property, precisely in order to be able to lawfully takethose lands at scale as unowned; this opened the way for Irish lands in virtuallytheir entirety to be reallocated to English nobles for plantation developments.24

In 1813, the new American Supreme Court engineered a similar denial of attri-butes of real property to native Indian landholding, for the same purpose ofdenying that their lands were already owned, and reconstructing these as landsthat only the individual state governments could allocate.25 By then this hadphilosophical support; although John Stuart Mills was yet to develop his defin-ing thesis on property (1859), John Locke (1689) had already established thenotion that property only comes about by the will of the state. Adam Smith(1776) had also helpfully established that property only comes into being byman’s labour, not that this applies to large land acquirers. The courts of theSpanish, Portuguese, Belgians, Dutch, and French were no less skilled than theEnglish 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 forInterpreting 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 andthe 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.




The Declaration of the Rights of Man (1789) and the subsequent influentialNapoleonic Civil Code (1804) consolidated the notion of property as existing onlyby state dictate and issue of title, meaning that real property owners in Franceremained few and the peasantry, despite titular liberation in other respects, stilldeprived 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 intopreferential trading zones, they were practised in legal justification that the landsand resources they wanted were unowned. Accordingly, the international lawarising out of Berlin, the General Act of the Berlin Conference on West Africa, 26February 1885, only required the signatories to establish sufficient authority “toprotect 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 themthe blessings of civilization” (Article 6).

While initially the Powers had no intention to create expensive colonies (thiswas already problematic in other continents), the necessity for this emergedalmost immediately as the free trade agreements collapsed, each Power compet-ing to control the African market for disposing the cotton, copper, and othermanufactures lying unsold in depressed Europe, to capture African coffee, tea,fruit, and sugar production to feed their own expanding middle classes, toprotect their rapidly expanding rubber, oil palm, and sisal plantations, and tosecure 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 1880–1890sera also left what Hobsbawn describes as cash-rich entrepreneurs with moneyburning holes in their pockets and looking for new spheres wherein to invest.26

Proof that Africa was unowned became a crucial task in lawfully capturingAfrican lands, not least to forestall reaction at home by religious and humanistactivists who had recently forced the ending of the slave trade. Solutions weredelivered in tens of sovereignty-cum-property laws enacted for colonies between1895 and 1914.27 Predictably, these established European heads of state as theultimate 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. AldenWily,Rights toResources in Crisis: Reviewing the Fate of Customary Tenure in Africa (2011),available at: <http://www.rightsandresources.org/publication_details.php?publicationID¼ 1405>




real property could derive. This could occur by registration of documents ofapproved past purchases from natives (applicable within existing coastalenclave or mission areas) or through new land grants to European settlers andtraders. While British and German administrations favoured issue of entitlementin absolute or long lease titles to individuals, the French and Belgians found iteasier to allocate millions of hectares of their new hinterland territories toconsortia of home companies, requiring them to perform policing or tax collec-tion duties on their behalf. By 1900, more than 70% of modern Gabon and theRepublic of Congo were divided into 42 French company concessions.28 Mostlaws did permit Africans to secure lands also, but through such onerous routesand 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 continentland takings and associated coercion of labour for European enterprise met withprotests, boycotts of European goods, refusal to sell food to European tradersand mission stations, and rebellions.30 On occasion, local elites with longstand-ing relations with European traders as themselves former slave, rubber, or goldtraders, found ways to play the colonisers at their own legal game. This wasmost successful in coastal Ghana during the 1890s, where experienced chiefsuniquely 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 challengesto the Colony of Southern Nigeria in 1912 and 1915.32 This culminated in a PrivyCouncil ruling in London in 1921 that natives should be compensated when theirsettled 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 (NewYork: 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 Historyof 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: CambridgeUniversity Press, 1969); and for Angola, refer A. Cain, “Angola: Land Resources and Conflict”, inLand and Post-Conflict Peacebuilding, J. Unruh and R. Williams (eds.), London: Earthscan atRoutledge, 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, Asiaand 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 AttorneyGeneral of Southern Nigeria v. Holt (2.N.L.R. 1; [1915], A.C. 599).




to unoccupied lands.33 This reinforced the notion of off-farm lands as waste-lands, empty of owners.

As twentieth century demands that colonial administrations not just pay forthemselves but make a profit for the home country, land takings multiplied, withnew rushes after both World Wars, expanding settler occupation in Anglophoneand Lusophone Africa, and French company capture in Francophone andBelgian Africa. Takings at scale for public–private enterprise gathered paceafter 1946 for mega-projects such as launched by the Niger Basin Authority togreen the desert in Mali, by the British Ministry of Food to grow groundnuts inTanganyika, or for equally un-lasting sesame and sorghum schemes in Sudan.34

International agribusiness was a main beneficiary, including oil palm compa-nies in Ghana, Firestone rubber in Liberia, Brooke Bond, and Del Monte tea andfruit conglomerates in Kenya, and ranching schemes in South Africa.35

All this land taking through the twentieth century was complemented bystate capture of all waters, foreshores, beaches, oils, minerals, marshlands andoften forests, woodlands and rangelands, even though at home in Europe (andAmerica) private ownership usually encompassed rights above and below thesoil, and also, in civil law, permitted small waters to be owned.36 These grabswere reinforced from the 1940s by a wave of land takings in the form ofgazetting forest reserves for state capture of lucrative hardwoods, then clearedfor replanting of (then) even more lucrative exotic species.37 This was revitalisedafter Independence in the 1960s, reservation not reconstructed as necessary forconservation until the 1980s. The Rio Declaration (1992) triggered a further waveof 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 Miragein 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 CommunityExpropriation: 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 LandManagement 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 Alienationunder 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 atInternational 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? 39Journal of Peasant Studies, no. 2 (2012), 237–261.




Protected Areas, now numbering 320 in Sub-Saharan Africa, absorbing millionsof hectares.

The coerced commodity production on peasant farms that accompaniedmuch of the above through the twentieth century was just as provocative, andthrough the necessity to also pay hut taxes drove a great deal of migration,displacement, and land loss.38 Latter-day colonial policies during the 1950scompounded mass insecurity, in declared aims and emergent titling pro-grammes to suppress family and communal tenure in favour of individualisationand associated policies to hasten concentration into landowning and landlessclasses to provide the labour needed for new waves of commercial land enter-prise and hoped for urban industrialisation.39 As independence loomed,European capitals also hastened to position themselves as key beneficiaries ofraw materials and commodities, such as they intended in the 1880s, exemplifiedin the determination of De Gaulle to refashion the French colonies into a FrenchFederation.

Such strategies were not rejected by emerging African elites allied with thecolonial administrations, so much as these raised the ire of African elites atbeing excluded from the rewards of large-scale land capture, and which werestill being periodically awarded Europeans.40 African society had rarely beenequitable and with origins often in slave and commodity trading families orchiefdoms, elites had gained immensely from the encouragement given to mis-sion schools through the century and had been routinely co-opted, as regionalguards or as local administrators in the Indigenat or British Indirect Rule regimesfrom the 1920s. By the late 1950s, the separation of elite land interests from thepoorer majority were ripe for renewed legal entrenchment favouring the former.Bayart, in his brilliant exposition of the politics of the belly during this and lateryears, and Chabal and Dauloz in their analysis of neopatrimonial relations inAfrica, amply illustrate the dynamics of elite-driven interests during the pre- andpost-independence era.41

38 D. Bryceson, Changes in Peasant Food Production and Food Supply in Relation to theHistorical Development of Commodity Production in Pre-Colonial and Colonial Tanganyika, 7Journal of Peasant Studies, no. 3 (1980), 281–311.39 The Report of the East African Commission of Inquiry into Land Tenure (1955) by the BritishGovernment 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 thePortuguese 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 andIndianapolis: The International African Institute with James Currey, 1999).




These dynamics help explain why so few new African nations (roughly 40independent states were created between 1956 and 1975) did not take indepen-dence as opportunity to liberate their people’s land rights from introducedEuropean norms and instead confirmed and even expanded lawful disposses-sion of their own citizens through denial of customary land interests as havingforce and effect as property.42 By the 1980s a plethora of semi-autonomousgovernment agencies were additionally beneficiaries of vast acreages of landspresumed legally to be unowned. These parastatals were usually run by associ-ates of politicians and civil servants, who have been as frequently the leadingbeneficiaries of lands when these parastatals eventually began to be dismantledduring the 1990s.43 The average size of peasant farms also plummeted, involun-tary farm landlessness rising by the 1990s to South Asian levels of the 1970s. InKenya, for example, 3% of the population then and now control at least 20% ofthe land.44

As illustrated below in the case of Tanzania, post-colonial land law con-tinued to ease paths of eviction and dispossession. Where affected communitiesprotested loss of their lands, new legislation was introduced to remove doubts asto the legality of land takings. In Sudan, for example, this was accomplished bythe Unregistered Land Act, 1970, to allow 5 million ha of Nuba and Funj lands tobe legally allocated to elite Sudanese and Middle Eastern investors, promptingthese populations to join Southern Sudanese in their war with Khartoum (1984–2002). The upshot for these and other affected rural populations across thecontinent was that they had even less legal security in 1990 than they hadpossessed in 1890, and the risk of losing land in practice had grownexponentially.

3 African land reform and the land rush

A wave of land reform has slowly crept across the continent since 1990. This hasbeen 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 ofCustomary 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 forRestructuring Governance in Fully and Partially Privatized Enterprises: The Case of Kenya, 31Fordham 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:<http://link.springer.com/content/pdf/10.1007%2Fs12571-012-0174-3.pdf>, accessed 1 July 2012.




and Latin America in that in Africa, reformism has focused on three otherissues: (i) mechanisms for more effective land administration, tending towardsdevolved processes; (ii) the status of majority rural customary land rights; and(iii) (often contradictory) strategies to make untitled land more freely availableto local and foreign investors.45 While political democratisation, ending ofcivil wars, and the final demise of white rule in Southern Africa have beenshapers of policies, initial drivers to launch tenure reform have commonlybeen to comply with the structural adjustment demands imposed by interna-tional financial institutions to make land available for private investors, localand international.

As a consequence, new land policies and laws have rarely delivered con-sistent, radical or definitively pro-majority visions of land rights. Instead theyare characterised by dual strategies, on the one hand aiming to protect localrights, while with the other hand promoting pro-investor strategies in a mannerthat threatens local rights. Contradictions tend to be ignored or protested as notexisting. Thus, the new Liberian National Tenure Policy declares that “theprinciples of economic growth and tenure security are not in conflict with oneanother but are complementary”,46 but fails to lay out how the estimated 57% ofLiberia which the state has leased to large companies, much of it in the last fiveyears, will be recovered by customary land owners whose rights are declaredprotected. Additionally, constructs for group rights are often awkwardly posedin many new national land laws, and yet embraces the greater proportion ofcustomary lands.

Broadly, the results of land law reformism for community-derived landrights have been mixed. Six states (Mozambique, Uganda, Tanzania, BurkinaFaso, South Sudan, and Madagascar) have adjusted laws to award customaryrights equivalent force and effect as real property rights, irrespective of whetheror not these are surveyed and registered, and/or held by individuals, families, orcommunities. Ghana and Botswana had undertaken this much earlier (in 1896and 1968, respectively). Imperfections abound in the norms of all eight states.Another 12 states (Kenya, South Africa, Liberia, Namibia, Senegal, Benin, SierraLeone, Angola, Nigeria, Malawi, Gambia, and Togo) have done so in moreproscribed manner or have promises and plans in progress, in the form of newpolicies and new laws.

45 L. Alden Wily,Whose Land Are You Giving Away, Mr President? paper presented at the WorldBank Conference on Land Policy and Administration (Washington, 2010), available at: <http://siteresources.worldbank.org/INTARD/Resources/335807-1229025334908/alden-wily.docx>46 Government of Liberia, National Land Tenure Policy (Monrovia: The National LandCommission, 2013), p. 4.




This still leaves most African states as having taken no or very limited stepstowards liberating their citizens’ land interests from a century of dispossessorylegislation and policies. Some of these have in fact taken alternative routes, suchas through extinguishing customary land rights altogether (Eritrea, Ethiopia,and Rwanda). Some do acknowledge in policies or laws that certain customaryholdings could be acknowledged as real property but limit this to homesteadsand/or offer routes that require extinction of the customary right in favour ofapplying to purchase (their own) untitled lands, or similar routes discouragingto customary majorities. The most resistant to tenure reform (political pledges toreform aside) are mainly Congo Basin and Sahelian States, such as Cameroon,Gabon, Central African Republic, Mali, Mauritania, and Sudan. Zimbabwe alsofalls in this category, having ironically liberated lands held by white farmerswhile forcefully retaining a situation in which communal lands remain vested inthe President, with absolute powers of disposition. Sudan, another example,continues to fail to meet restitution commitments agreed in the 2005Comprehensive Peace Agreement following the 24-year long North–South War.

Meanwhile, it may be cursorily observed that no African country has yetseen fit to liberate state capture of all waters, beaches, foreshores, minerals, andoils with restitution of possibilities for communities to recover relevant localassets in the future, such changes as there have been uniformly in the directionof availing affected communities social services or other such facilities, termedbenefit-sharing, remote from resource-sharing. Nor are communities yet per-mitted to become owners of protected areas, sustaining the convenient fictionthat valuable resources require state ownership to be conserved, notable excep-tions being South Africa and Tanzania.

The overall result is that a small proportion of African customary lands aresecured 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 onthe subcontinent are (to one degree or another) recognised as customary property,just over 10% of all untitled African lands. Among these, the most substantial andfirmly secured lands are those categorised as Village Lands in Tanzania, extend-ing 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 fragilemoves towards pro-poor tenure reform cursorily described above. There was(and still is) substantive evidence of this in the slow-down of production ofpromised new national land policies where these have been pledged by sitting




commissions, or by failure to entrench new policies in new law. Cases in pointinclude The Gambia, Nigeria, Sierra Leone, Swaziland, Zambia, Malawi,Botswana, DRC, Cameroon, and Mauritania. In other cases, shortfall accountableat least in part to the land rush is where laws turn out to be significantly lesspeople-friendly than originally posed (e.g. Lesotho (2010) and Burundi (2011)).

It is also the case that some of those countries which did produce reformistpro-majority land law since 1990 have sought since to renege on provisionsprecisely to ease investor access further. Amendments, attempts to amend, andreinterpretation of articles have been used. In Ethiopia, for example, enablementfor communities to secure off-farm lands under collective title (2005) has beenreinterpreted as excluding the major resource in key regional states, pastorallands, and increasingly, all off-farm lands. In Tanzania, contradictory definitionof unoccupied and unused village lands in the two land laws of 1999 are beingused to justify land takings along with much reduced compensation to commu-nities. In Mozambique there was a clear attempt in 2012 to limit the size of areawhich a community may delimit and receive formal entitlement. In Uganda,legal provision of national and local government rights to valuable lands hasbeen used to take community rangelands on this basis, including defeat of alegal challenge against this. The new South Sudan administration has alsojustified deals with investors for vast lands on grounds that the law does permitit to declare investment areas, with ambivalent requirement for local consent.

On the other hand, the land rush is generating such increasing local reactionthat 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 inCameroon and Gabon, both governed by leaders considered among “the world’sworst living dictators”.47 The surge in mining and timber concessions (mainly toChina) and fewer but very large leases to American, European, and Malaysianrubber and oil palm developers is prompting a sharp rise in civil societymobilisation, and politicisation around land rights, along with substantial rep-rimand by international NGOs.48 If only for political reasons, those governmentsmay later, if not sooner, feel bound to modify their land laws, much as acrossthe 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 Acquisitionsin Africa – With a Focus on West and Central Africa (Washington, DC: Rights and ResourcesInitiative, 2013).49 Reference is made here to the landmark decision of Indonesia’s Constitutional Court in May2013 (Nomor 35/PUU-X2012, Mahkamah Konstitusi Republik Indonesia) invalidating theIndonesian government’s claim to 40 million ha of forestland claimed under customary tenure(adat).




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 localgrazing lands by elites (often from the capital) has boiled over in demands forthe Communal Lands Reform Act, 2002 to be revisited. In Kenya, rewrite of arejected Community Lands Bill of 2011 is stretching constitutional provisions totheir limit, including proposals to facilitate restitution of forest and wildlifereserves. In Senegal, having failed to secure support for a law favouring investorinterests, a redraft of new land law is underway. Meanwhile, despite the rush,Benin (2007) and Burkina Faso (2009) managed to see through fairly radical newland laws into enactment, protecting majority rural land interests, explicitlyinclusive of valuable but vulnerable off-farm commons.

In short, it is not clear whether the land rush will succeed in capturing largelands in the untitled sector and/or sustain this in the longer term. A longer termperspective may be necessary. To exemplify the case thus far, a snapshot of landlaw 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 colonialhistory, strictly speaking in the form of state-backed colonisation societiesformed in America following the liberation of African slaves, with the aim ofreturning volunteers to Africa. As was the case with merchant and missionenterprises in coastal Africa at the time, these societies formally purchasedlands along the coast of what is now Liberia during 1820 and 1956 from localchiefdoms, signalling awareness that these lands were African property.50 It wasnot until the expansion of the Republic of Liberia (1847) into hinterlands after1885 to limit 1880–1890s land grabs from Britain to the north (Sierra Leone) andfrom France from the south (Côte d’Ivoire) that the question arose as to whetherLiberia should pay for these vast new territories inland. The Supreme Courteventually put an end to contentious debate within the Monrovian governmentas to the status and rights of Aborigines in these hinterlands (as they werecalled) in 1920, by ruling that it had been “unnecessary to seek or secure thewilling 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) andBrussels (FERN), 2007).51 Ibid., 78, citing Chief Justice Dossen.




Hinterland chiefs were less compliant, and within three years they hadsecured a law for the Hinterland which enabled the “right and title for anadequate area for farming and other enterprises essential to the necessities ofthe tribe …” to be retained (Suehn Conference of Hinterland Chiefs, 1923, enter-ing into Regulations variously retained until 1949). Additionally, these areascould be converted into “a formal communal holding upon application …surveyed at the expense of the tribe concerned”. Further, “should the tribebecome sufficiently advanced in the arts of civilization, it may petitionGovernment 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 haunder communal Aboriginal Title Deeds (ibid: 117). Others either did not know ofthe opportunity, were insufficiently organised and solvent to take advantage ofthis, or were simply confident that Monrovia would not infringe upon theirlands, even without deeds, as the same Regulation had additionally pledged.This more or less lasted until the land rush generated by the Open Door Policyannounced by President Tubman in 1944; between 1951 and 1961 this resulted ina massive transfer of customary lands to foreign mining (iron ore), rubber andlumbering companies and a good deal less compensatory employment thanpromised, engendering the term “growth without development”, reflectingunparalleled growth but income accruing almost exclusively to foreign compa-nies 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 publicland in the area as required for farming and other enterprises essential to tribalnecessities” (The Aborigines Law, Section 270, Title 1 Liberian Code of Laws,1956–1958). This was confirmed by revisions to the longstanding Public LandsAct and by enactment of a new Land Registration Act in 1974. These establishedthat individuals and communities in the Hinterland could acquire formal own-ership 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 bythe gazettement of 1.35 million ha of prime forestlands as National Forests in1960–1961, extinguishing customary rights with no compensation. Land andresource grievances contributed to civil war (1983–2003), reaching a nadir in2000 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.




bluntly declared that all forest resources were Republic property; these covernearly 60% of the country and accordingly roughly 60% of all community lands.

Cancellation of all concessions was an obligatory pledge for Ellen JohnsonSirleaf to attain the Presidency in 2005, with production of a new Forest Act in2006 and a Community Rights Law in Respect of Forest Lands in 2009. The latteracknowledges that forest resources on community lands belong to communities(Section 2.2). As important, the law defines community land as “[a]n area overwhich a community traditionally extends its proprietorship and jurisdiction, andis recognised as such by neighbouring communities” (Articles 1 and 2.2).

Nevertheless, reissue of private concessions restarted promptly, so thattoday over half the country is leased for oil palm and rubber plantations or tolumbering and mining developments.53 Popular protest has been active, targetedespecially to grants of 440,000 ha to Malaysian and American oil palm compa-nies, 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 hascoerced some retraction in Government protection of deals it has authorisedincluding suspension of another set of unlawfully acquired Private Use Permitsfor timber extraction involving 2.5 million ha (23% of the country area). As in the1950s, many of the beneficiaries are local elites, and sometimes from within thecommunity.56 Civil society has not been shy to investigate and document cases,bringing home reality that local leaders within poor communities are notimmune from taking advantage of poor governance of the law.57

While allegations of nepotism and corruption plague Sirleaf’s administra-tion, Liberia – like Cameroon and many other states in the region – publiclycommitted to tenure reform. Liberia has pursued this most actively, with pro-duction 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 ofcommunity land areas by rural communities to confirm these rights within

53 The National Land Commission acknowledged in January 2013 that 57.5% of the countryarea 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: <www.Reuters.com/assets/print?aid=USBRE921L0Y520130322>, accessed 1 May 2013.56 Government of Liberia, Special Independent Investigating Body, 2012. Report on the Issuanceof 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.




community-based governance regimes. This would return citizen land rights andlocalised land governance to broadly the situation they were in between 1923and 1956. However, the Policy also pledges to make land available to commer-cial land investors. It also permits and therefore encourages customary land-holders to sell their lands in the open market place. Both threaten attrition ofcommunity lands. The Policy also lacks procedures of discovery prior to statesale of lands, which it continues to contradictorily present as unowned publiclands, even though these may be occupied and claimed as customary estates.Without formal obligation to discover rights prior to lease to investors, custom-ary 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 wasso rapacious that the British Government, also land grabbing to the north (Kenya)forced the drawing up of a Delimitation Treaty, 1888. This, together with fierceresistance by coastal Arab and indigenous inland communities to land grabbingby European profiteers forced Germany to declare a militarily backed protectorateover Tanganyika, Burundi, and Ruanda in 1891. By 1896 and 1903 Berlin wastrying to halt the profiteering itself, requiring Germans to show cultivation of halfthe lands they had acquired through one means or another to qualify for freeholdentitlement.59 Forced labour for plantations, road building, and railways andimposition of hut taxes added to local grievance, flight and rebellion, includingat Maji Maji where 75,000 Africans were killed between 1905 and 1907 for refusingto grow cotton for Germany. Conciliatory plans by the liberal GovernorRechenberg (1906–1912) to enable natives to produce cash crops on their ownland were rejected by the new plantation sector as reducing the forced labour theyneeded to support the home economy. More compliant and rewarded chiefs werealso appointed to serve the Administration’s objectives.60

On the defeat of Germany in World War I, Tanganyika was handed over toBritain as a mandated territory, Ruanda and Burundi hived off and attached tothe Belgian Congo Free State (1920). London immediately issued an Order inCouncil declaring that existing German-issued freeholds were intact and that theBritish Crown was owner of all untitled lands, and empowering its new Governorto 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.), Historyof East Africa (Volume 2, 1965).60 Ibid.




Ordinance, 1923). The League of Nations disputed this development as contraryto the mandate, which was to protect natives, not to colonise the territory.61

After five years of debate, the Land Ordinance was grudgingly modified, withredefinition of a Right of Occupancy to include “the title of a native communitylawfully using or occupying land in accordance with native law and custom”, tobe known as a Deemed Right of Occupancy (1928).

In practice, there was no equivalency between formally Granted and Deemedrights, Africans continuing to be evicted at will to make way for new waves ofsettlers and investor schemes between 1930 and 1958. One of the more notoriouswas the short-lived groundnut scheme (1947–1951) that set out to convert fivemillion acres into food and oil production for post-War Europe, failing, but in theprocess denuding one million acres of local community lands.62

Protests at land taking continued with major actions in 1937, 1946, 1953, and1955 as land taking enterprise such as Uluguru and Sukumaland Schemes tookmore and more customary property. By the 1950s Tanganyikan farmers were“more ready to resist than they had been in 1905 … and better organized”.63 Onedispute eventually came before the Trusteeship Council of the League of Nations(1952) but failed to counter British arguments that it concerned a strictly internalaffair. This resulted in the most meagre of amendments to the Land Ordinance,with insertion of requirement that there be more consultation prior to orders tolocal populations to remove themselves from an area.64 Evictions continued fora host of schemes, and in addition, for extractive forest and wildlife reservesunder a new Public Lands (Preserved Areas) Ordinance, 1954.

Nationalisation characterised post-Independence (1961) law, the ultimatetitle of all land in the country vested in the President as Public Land. Nyerereargued that government was the rightful inheritor of pre-colonial communaltribal tenure, serving in effect as the new super-tribe. Freeholds were abolishedin 1963, converted to 99-year leaseholds, in turn converted into Granted Rightsof Occupancy in 1969 with limited powers to sell or sub-let. Additional laws wereenacted 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 Tanganyikaduring 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 SocialSciences, Economics, no. 1 (2012), 1–11.65 R. Feldman, Custom and Capitalism: Changes in the Basics of Land Tenure in Ismani, 10Tanzania Journal of Development Studies, no. 3/4 (1974).




In practice, community-based tenure steadily evolved in the 1970s and 1980sthrough radical new rural settlement and development policies which restructuredscattered hamlets as formal villages with public services and their own govern-ments, entrenched in The Villages and Ujamaa Villages (Designation, Registrationand Administration) Act, 1975 and the Local Government (District Authorities) Act,1982. New agricultural policy (1985, 1987) directed the Ministry of Lands to issueVillage Land Titles to elected village governments, instructed them to in turn issueleaseholds to individual members of the community for their homesteads. Over600 of 8,219 village governments received such deeds before the strategy wasundermined as lacking legal backing.

In the meantime, a contrary policy of land taking afflicted more and morecommunities, Government forcefully using its ultimate landlord powers aidedby enactment of the Rural Lands (Planning and Utilization) Act, 1973. Duringthe 1980s a series of Orders were passed under this law, extinguishing cus-tomary rights over large areas to make way for burgeoning state agribusi-nesses, or to hand over to related investor schemes such as the CanadianGovernment-backed wheat schemes of Mbulu, or to privatised seed bean andsisal developments, reminiscent of colonial large-scale land schemes of the1910s, 1930s, and 1950s. Those evicted again began to take their grievances tocourt.

In response the Regulation of Land Tenure (Established Villages) Act, 1992was enacted, extinguishing all customary rights throughout the country. Thiswas justified as necessary to remove the confusion as to the status of customarylands left when homesteaders had moved into aggregated villages during the1970s.66 Critics were not slow to declare the law a poorly veiled attempt to robthe population of their lands, pointing to the structural adjustment demands ofIMF loans to the Government as the trigger for this.

The hasty passage of the law was not coincidental. It was designed tocounteract the recommendations of a major land investigation commission,reporting to the President at the same time.67 The Commission urged thePresident to surrender ultimate title and to vest this directly in rural commu-nities. 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. Kijo-Bisimba (eds.), Law and Justice in Tanzania: Quarter of a Century of the Court of Appeal (Dar esSalaam: Legal and Human Rights Centre and Mkuki na Nyota Publishers, 2007).67 United Republic of Tanzania, Report of the Presidential Commission of Inquiry Into LandMatters. Volume I Land Policy and Land Tenure Structure (Dar es Salaam: The Ministry ofLands, Housing and Urban Development, Government of the United Republic of Tanzania incooperation with The Scandinavian Institute of African Studies, Uppsala, Sweden, 1994),pp. 143–150.




reserves be vested in an autonomous National Land Commission.68 Civil societysupport for the Commission report was substantial. In October 1993, the HighCourt, responding to claims against evictions for state-private schemes, ruled theLand Tenure Act of 1992 unconstitutional. This was upheld, following appeal bythe Deputy Attorney General in 1994.69 Judge Nyalali of the Court of Appealbased his ruling upon a reinterpretation of the Land Ordinance, 1923, still inforce, 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 realizethat if the Deputy Attorney-General is correct, then most of the inhabitants of Tanzaniamainland are no better than squatters in their own country. (Judgement, 1994, Attorney-General versus Lohay Akonaay and Another, reported in [1995] 2 LRC 399).

During debates for new policy in 1995, Government conceded support forcustomary rights as property interests but stood firm against surrender of itsultimate title, although allowing caveat that this would be held henceforth on atrustee basis for the nation. Most other recommendations of the Commissionwere adopted into the new National Land Policy in 1995.70 Meanwhile neigh-bouring Uganda picked up the baton and abolished state tenure in its new post-civil war Constitution of the same year.

One of the most important new strategies was to reverse gathering politicalintention by the post-Nyerere Administration of Tanzania to recentralise govern-ance away from ever-more autonomous village governments. Instead, theNational Land Policy declared that village governments would be the lawfulland managers of all land matters including issue of customary title within thedomains over which they respectively presided.

Additionally, the Policy and eventual Village Land Act of 1999 counteractedrising government practice from the 1980s of recognising a village land area aslimited to settlements and farms, excluding the community’s often expansiveoff-farm lands. Options were laid out through which a community could delimitits territory, including written negotiation and agreement by neighbouring com-munities (Section 7). Practically, no-man’s lands between villages, claimable bythe State, disappeared. The law reinforced inclusion of communal lands byrequiring 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, CivilAppeal 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).




Village Land (Section 13) prior to allocation of individual title to villages for theirhomesteads.

Loopholes remain through which Government and investors since haveengineered takings of off-farm lands. One, mentioned earlier, is liability thatremoter woodlands and rangelands can be defined as “unoccupied and unuti-lised village lands”, defined inconsistently by one of the land laws of 1999 asGeneral Land (Government Land). Even without this, communities have beenpersuaded with promises of jobs and services to surrender off-farm lands toGovernment for re-issuance to investors.71 By 2009, President Kikwete, as chairof a major business sector organisation, published a new farming policy (KilimoKwanza Resolution, 2009) including a main objective to amend the Village LandAct of 1999 to more directly free up land for investors. This has not yet metsupport in the Parliament and may not in the foreseeable future, given growingpublic dismay at continuing evictions in service of public interest which turnsout to be mainly private. These range from removing peri-urban communities forhousing developments, to green grabs in the form of Controlled Hunting Areasoverlaid on village lands, to a series of semi-coerced surrender of village lands toprivate companies for large-scale tree planting for companies to earn carboncredits and timber plantations.72

Enactment of the Land Use Planning Act, 2007, has inadvertently contrib-uted to concern by laying down such complicated planning requirements forvillages, that issue of Certificates of Village Land (CVL) has come almost to ahalt; without this village governments are practically but not lawfully desig-nated as land managers. By 2011, only 812 of 12,000þ villages had receivedtheir CVL.

The Land Use Planning Act of 2007 also eases the path through whichGovernment may remove lands from a village, for planning purposes. Thisadded to provisions from a 2004 amendment of the 1999 Land Act making itlegal for investors who acquire village lands through Government to sub-leaseand 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, Iringaand Pwani Regions (Dar es Salaam, 2010).72 Land Rights Research and Resources Initiative, Accumulation by Land Dispossession andLabour 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 inMbarang’andu Wildlife Management Area, Tanzania (Brighton: Land Deals Policy InitiativeWorking Paper 15, 2013).




encouraged to surrender off-farm lands in return for social agreements that jobsand services would be provided, lost both lands and these benefits when failingcompanies sold on the land to other companies with whom the communitieshave no such deals.73

At the time of writing in mid-2013, public wariness against legal changes isat an all time high following the announcement of the Minister of NaturalResources and Tourism that 1,500 sq. km of village land belonging to pastoral-ists will be gazetted as a Controlled Hunting Area for lease to a Dubai huntingcompany, with which leading politicians have long had links.74

The reaction of affected pastoralists was so strong that the Minister feltcompelled to publish a two-page defence in local and regional press, claiminghe was hurt that Government’s generosity in allowing the 70,000 pastoralistsaffected 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 securerights to land as and when the State so recognises these, and for which theprincipal instrument has been registration of documented ownership or deedstestifying to transfers. This contradicts the terms of the Village Land Act, whichdoes not require customary landholders to declare or register their rights. Thissuggests that even a decade after the law came into force, that its terms are notwell-absorbed or accepted by all officials and politicians. Press and publicreaction was swift and sharp. The most effective expression of discontent wasnot through sit-ins at government offices and Parliament during early 2013 butthe widely filmed act of some thousands of women from the affected commu-nities dumping their party cards in sack-loads on the steps of local ruling partyoffices. As the strength of opposition parties has steadily grown since theinstitution of a multi-party system in the early 1990s, and with elections aroundthe corner in 2014, this unsettled the ruling party. The Prime Minister recalledthe decision to gazette the Controlled Hunting Area “for further consultations”and follow-up communication with leaders of the affected communities suggeststhat no action will be taken in the meantime.75 This was not the result thatcommunities were seeking, and they worry that once the election is passed, thePresident 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 EastAfrican, 7–13 November 2011: 33.74 Maliasili Initiatives, Securing Community Land Rights. Experiences and Insights from Workingto Secure Hunter-Gatherer and Pastoralist Land Rights in Northern Tanzania (Arusha, 2012).75 Peter Msigwa, Opposition Representative for Natural Resources, 3rd May 2013 “Hotuba yamesemaji mkuu wa kambi rasmi ya upinani mhe”, Dodoma: Parliamentary Address.




4 Conclusions and policy implications

Above sections illustrate the way in which law both helps and hinders fulfilmentof majority rights, in immediate or evolving ways. They also show that the lawis, no matter how tightly drafted, vulnerable to reinterpretation whether pro-poor or pro-elite. It is also apparent that the 1890–1990 century saw legalprovision for majority land security began better than it ended. Support forland rights on untitled lands plummeted with each phase of state-endorsedland grabbing, and up to the present eats away at laws that purport to provideremedy. While the current rush exacerbates contestation, it does so in a contextthat has longer origins of social transformation, within which there are advancesand setbacks, with rarely complete resolution as to the real safety of majoritycustomary tenure.

It is also evident that that public protest is not new. Yet, there is a fairchance that civil society could prove more successful today in its claims thanenjoyed by past generations. Reasons for this would include that affectedpersons are being heard in a more supportive international environment asillustrated in the issue of voluntary guidelines on tenure security issues andtheir uptake by national governments thus far (see Bruentrup et al. and Paoloniand Onorati, this issue) and by the fact that international advocacy groups, suchas Oxfam International, the International Land Coalition, and Global Witness,have brought the status of community-derived land rights, and especially that ofoff-farm lands, to the forefront of their agendas. Communities are also betterlinked among themselves and with national and public forums through freerpress and ever-expanding mobile phone and internet access. They are also betterequipped educationally to argue their case in legal and political terms. Withadvancing democratisation they also have firmer political voice, including thepotential to bring down governments. Finally, the boundaries of what constitu-tes property is steadily escaping the confines of received laws, which seemed formuch of the twentieth century to be irrevocably dependent upon state-given andstate-law bound entitlement.

This does not mean that the conflict of interest that underwrites socialtransformation and plays out broadly along rich and poor lines is dissolving.On the contrary, land rushes expectedly widen the divide. This is so much sothat, as illustrated above, governments who introduced protective measuresbefore the current rush show signs of regretting their benevolence. The factthat they are experiencing difficulty securing reversals or modifications inreform says more about the maturation of the state, including steady separationof executive and judicial powers and more obligatory distance between state and




private interests, than a faux lessening of conflict of interest in modes ofeconomic growth. Management of the conflict through compromise rather thanhope 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 thatenable and require commercial land users to lease directly from traditionalowners, or to oblige companies and parastatals to offer significant shareholdingin their commercial enterprises to those landowners. More positively, pursuit ofthe legal grounds upon which this might become necessary does seem to beaccelerating. I will focus briefly below on the most important development inthis regard, the right of communities to secure all or part of their lands incommon, 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 maybe 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 beingpermissive occupants of unowned/state lands to being legal owners, withoutproof of title in registered documentation. This occurred in Botswana in1968, in Uganda by constitutional provision in 1995, in Tanzania in 1999,and in Burkina Faso and South Sudan in 2009. Untitled landholders inSouth Africa also secured constitutional acknowledgement of their untitledproperty 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 rightsneed to be aware of the new legal protection and be availed easy and cheappaths to defend those rights. The law also needs to subject applications forprivate title to untitled lands to a rigorous procedure of discovery, to be surethat these lands are not already owned customarily. Given the passage of time,restitution of land or cash compensation is also needed to resolve many long-standing abuses of land taking power. In many laws not all these conditionsare met.




4.1.2 Domain or right-based delimitation

Moreover, advantageous as declamation is, delimitation on the ground is neces-sary to refine and double-lock in principle rights. This in turn can occur on acase-by-case basis or through sweeping definition of vast domains within whichcustomary rights are protected. The domain model builds under colonial prac-tices of setting aside native reserves, particularly adopted in Anglophone colo-nies. Some tenure reforms in Africa have reconstructed these into as, forexample, the former homelands in South Africa, tribal lands in Botswana,communal lands in Namibia, village lands in Tanzania or gestions des terroirsin Senegal. The domain approach – at least in theory – makes it less necessaryfor each customary landholder (individual, family, or community) to specificallyidentify and secure its parcels. Permission may be required, but to a remotetribal-wide land board, which in practice reports upwards to central Governmentmore 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 isspecifically due to each and every village community operating an electedgovernment with full land powers, and which cannot easily, or legally, besidestepped. In Sierra Leone and Ghana (and also Zambia), the fact that thisauthority is vested in chiefs does not necessarily advance accountability tocommunity members, with sales of customary land by chiefs (lawfully or other-wise) quite widespread. It is also helpful in the Tanzanian land law paradigmthat no non-member of the village may acquire land directly; this may only beaccomplished 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 arguablyfeel more protected in village lands in Tanzania than they may feel, for example,in Mozambique, Angola, and Uganda in the absence of empowered village-levelland authority and associated historical development of community land areas.Practically speaking, customary landholders in such states need to identify andphysically 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 communityland area and bring this under a single collective entitlement. This is theapproach being followed by some communities in a number of African coun-tries, usually with INGO or NGO assistance; this has been undertaken in a range




of cases in South Africa (with help of the Communal Properties Association Act,1996), in Mozambique, with now around 320 of 3,000 communities securingformal entitlements for community lands, and more recently undertaken inMadagascar, Angola, Kenya, Uganda, and Liberia. Needless to say, the pressureof large-scale land acquisitions encourages this further, with community landdelimitation also being adopted in some countries precisely to coerce new policyand legal provisions; the case in Sudan, Cameroon, Democratic Republic ofCongo, Ghana, Malawi, and Gabon.

Differences exist in how easily delimitation of collectively owned lands is toundertake. Broadly, this is least easy where a community must form an alter-native legal entity in order to be a legal person. This was the model adopted inSouth Africa by the Communal Property Associations Act, 1996, and adoptedinto the Uganda Land Act, 1998. The former saw minor uptake due to thecomplexities and costs involved, while no Ugandan community has yet seenfit to create a Communal Land Association for this purpose. More practicalapproaches are found in the laws of Tanzania, Burkina Faso, Benin, andSouth Sudan where first, a community exists by name as a legal person, andsecond, in the process of formalising customary rights the community mayregister these as owned by individuals, families, groups, or the whole commu-nity. Moreover, the procedure is to be performed at community level, usingcommunity-controlled land registers.

4.2 The old conundrum: communal or individual rights

Legal developments such as described above bring to the fore necessary deci-sion as to what legal forms collective entitlement should take. A first option isissue of collective title for the entire community land area, most immediatelysuitable to hunter-gatherers and pastoralists. This has most in common withNative Title as adopted in especially Latin America and Australasia to meet thedemands 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 isnow under formal native title.

A second option is for the community to secure collective root title out ofwhich individual and family usufructs are maintained, including those held effec-tively in perpetuity. A third option is for the community to seek collective entitle-ment only for those off-farm lands which it owns and wants to continue owningcollectively, enabling individuals to secure private entitlement for their home-steads. A fourth approach is for a community to eschew any level of collectiveentitlement altogether, settling for entrenchment of community-based jurisdiction




over all holdings within the traditional domain, to be administered on the basis ofcustom, or more accurately, modern-day community norms. This tends to appealwhere little to no common lands remain but where communities prefer to usetraditional rather than state laws to regulate their land relations, including towhom a villager may transfer his lands, without social sanction.

Not all new land laws in Africa provide easily for these choices, bestarticulated in legislation in Tanzania, Burkina Faso, and Benin, and in otherways practised in Ghana in the form of customary freehold entitlements. Othernew laws tend to make the choice for communities, equating customary landwith an all-inclusive single collective title, which is the case for example inMozambique and Angola. Alternatively, even best practice laws may weakenand confuse routes of formalisation by offering both statutory and customaryroutes of formalisation, the latter competing poorly with well-establishedstatutory entitlements. This is the case in Uganda where customary land-owners may entrench their rights under freehold or, less expensively, as acustomary entitlement. This is similarly the case in Botswana in respect ofprivate holdings. More seriously, while ample opportunity is given inBotswana and Namibia to formalise customary occupation of homesteads,no such opportunity is available in respect of off-farm lands which ruralcommunities hold collectively. Instead, these vast lands in both countriesare treated in effect as unowned and which senior authorities may allocateat will to individuals under leasehold tenure, and including for commerciallivestock development purposes. Significant losses occur. For example, in theOkavango 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 itstraditional area.

4.3 The underlying conundrum: commoditisation

Decisions around the above tend to also impinge profoundly upon the centralconundrum for many officials and indeed, community members, as to whetheracknowledgement of customary rights as real property interests means that thelaw 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 tenuredebates in Kenya, Liberia, and Namibia (and likely elsewhere). The reiteratedconcern is that this opens the way to wanton attrition in community lands,including distress sales by poor families. While chiefs in Ghana, Sierra Leone,




Zambia, and Malawi may limit this, they may also be party to unwarranted salesof 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 forcustomary rights and developed community-based governance. This is becauseeffectively limitations derive largely through a combination of active institu-tional governance within communities, legal strictures against transfers withoutthe village government’s permission, the outlawing of sales to most outsiders(NGOs or churches operating in the village are an exception) withoutGovernment first acquiring the land, and a legal condition that each communitymust ensure that every household has land to live on.76

There is pressure to remove these limitations from both within and withoutrural communities. The latter is interesting, and pressure may derive from urbanresidents seeking assurance that their home areas are not being sold off bychiefs, leaders, or being lost through preeminent state rights to take those landsand reallocate them at will to wealthy private land seekers or investors. It isnotable that some of the greatest pressure for protection of customary rights incountries like Kenya, Gabon, and Liberia has derived from urban youth andmembers of rural communities who return to their home villages only once ayear. While this expresses the increasingly complex nature of integrated ruraland urban society within which some members may work in cities and townsand never live in the village again, it also expresses evolving notions of, andclaims to, ancestral lands, which governments dismiss at their peril. Leaving thevillage, and urbanisation in general, does not necessarily mean leaving one’sland rights behind. Moreover, these signal the emergence of new notions ofproperty, 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 theold truth that national law is an instrument of state and is constructed andinterpreted in the image of its policies, and that as these alter, interpretation ofthe 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 aboutTanzania’s New Village Land Act, 1999 (London: International Institute for Environment andDevelopment, 2003).




time to time but also impact negatively upon institutionally and legally weakermajority agrarian land interests; and third, that each land rush has its distinc-tions. In the current rush, this includes both a (partially) altered legal envir-onment for majority land rights in the selected example region, Sub-SaharanAfrica, and a fast-altering socio-political environment, with a stronger possi-bility of more protective legal remedy eventually emerging. Additionally, newforms and notions of what constitutes real property are being promoted.Fourth, this paper has also attempted to show that a crucial legal tenureshift is towards heightened demand and some delivery of customary securityapproaches which at last look beyond the farm, tackling the tenure of landsthat have customarily been usually collectively owned at extended family andespecially community level. This is a new ambition of land reform, andaccelerated, if not originally prompted, by the land rush. Main debates anddistinctions among country strategies thus far have been around how acces-sibly this is provided for. Resistance against legal routes of collective entitle-ment can also be anticipated as this extends to a degree that interferes withpersisting landlordist ambitions of Governments. This is already being felt incountries where legal regimes best secure untitled customary lands in general.How far provisions for securitisation in principle and on-the-ground delimita-tion and entitlement of community lands in particular will multiply will be amain indicator within five to ten years as to how far land law is proving morefriend than foe to majority rural poor, in the face of the contemporary landrush. In this regard, politics and politicisation through struggling but expand-ing devolutionary democratisation will be key.

References

Alden Wily, L., Going Global: Securing the Commons at Scale, paper presented at InternationalLand 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 WorldBank Conference on Land Policy and Administration (Washington, 2010), available at:<http://siteresources.worldbank.org/INTARD/Resources/335807-1229025334908/alden-wily.docx>

Alden Wily, L., So Who Owns the Forest? (Monrovia (Sustainable Development Institute) andBrussels (FERN), 2007).

Alden Wily, L., Land Rights Reform and Governance in Africa How to Make It Work in the 21stCentury? (Nairobi, UNDP Drylands Development Centre, and Oslo, UNDP GovernanceCentre, 2006), available at: <http://www.undp.org/oslocentre/docs07/Land_Rights_Reform_and_Governance_in_Africa.pdf>




Alden Wily, L., Community-based land tenure management. Questions and Answers aboutTanzania’s new Village Land Act, 1999 (London: International Institute for Environment andDevelopment, 2003).

Alden Wily, L., The Tragedy of Public Lands: The Fate of the Commons Under Global CommercialPressure (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 CustomaryLand 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: <http://www.rightsandresources.org/publication_details.php?publi-cation ID=1405>

Alden Wily, L., Looking Back to See Forward: The Legal Niceties of Land Theft in Land Rushes, 39Journal of Peasant Studies no. 3–4 (2012).

Allan, T., “Introduction: Can Improving Returns to Food-Water in Africa Meet African Food Needsand 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 Foodand 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 inAfrica Foreign Direct Investment and Food and Water Security (London and New York:Routledge, 2013).

Amanor, K.S., “Sustainable Development, Corporate Accumulation and CommunityExpropriation: 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 inAfrica, 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: LincolnInstitute of Land Policy, 2010).

Cain, A. Angola, “Land Resources and Conflict”, in J. Unruh and R. Williams (eds.), Land andPost-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 (InternationalInstitute for Environment and Development, CIRAD and International Land Coalition, 2012),available at: <http://www.landcoalition.org/publications/tragedy-public-lands-fate-com-mons-under-global-commercial-pressure>

Anseeuw, W., M. Boche, T. Breu, M. Giger, J. Lay, P. Messerli and K. Nolte, Transnational LandDeals for Agriculture in the Global South. Analytical Report based on the Land MatrixDatabase (Rome: The International Land Coalition, University of Berne, CIRAD, GIGA andGIZ, 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).




Borras, S., C. Kay, S. Gomez and J. Wilkinson, Land Grabbing and Capitalist Accumulation: KeyFeatures 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 HistoricalDevelopment of Commodity Production in Pre-Colonial and Colonial Tanganyika, 7 Journalof 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, Iringaand Pwani Regions, Research Commissioned for Pelum Tanzania (Dar es Salaam, 2010),available at: <http://www.commercialpressuresonland.org/sites/default/files/110406_Land_Acquisition_Tanzania.pdf>, accessed 12 May 2011.

Chanock, M., “Making Customary Law: Men, Women and the Courts in Colonial NorthernRhodesia”, in M. Hay and M. Wright (eds.), African Women and the Law (Boston: BostonUniversity 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 duringthe Colonial Period in Tanganyika”, in L. Cliffe and J. Saul (eds.), Socialism in Tanzania, AnInterdisciplinary Reader (Birmingham: East African Publishing House, Vol. 1, 1972).

Corson, C. and I. MacDonald, Enclosing the global commons: the convention on biologicaldiversity 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 theCase of Tanistry, 3 Melbourne University Law Review (2002), pp. 1–26, available at:<http://www.austlii.edu.au/au/journals/MelbULawRw/2002/3.html>, accessed 14 July2013.

Emerton, L., Quantifying the Impacts of Barriers to Pro-Poor Forest Management, Livelihood andLandscape Strategy (Gland: IUCN, 2010).

Fairhead, J., M. Leach and I. Scoones, Green Grabbing: A New Appropriation of Nature? 39Journal of Peasant Studies no. 2 (2012).

Feldman, R., Custom and Capitalism: Changes in the Basics of Land Tenure in Ismani, 10Tanzania Journal of Development Studies, no. 3/4 (1974).

Government of Liberia, Special Independent Investigating Body, 2012. Report on the Issuance ofPrivate 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 (NewYork: University of Rochester Press, 2002).

Greco, E., “Struggles and Resistance Against Land Dispossession in Africa: An overview”, inT. Allan, M. Keulertz, S. Sojamo and J. Warner (eds.), Handbook of Land and Water Grabs inAfrica Foreign direct investment and food and water security (Abingdon: RoutledgeInternational 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 assistanceof 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).




Hopma, J., Planning in the Wind: The Failure of Jordanian Investments in Sudan. Land DealPolitics 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 toSecure 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:<http://link.springer.com/article/10.1007%2Fs12571-012-0174-3> accessed 1 July 2012,Vol. 4(3) pp. 399–421.

Kanyinga, K., O. Lumumba and K.S. Amanor, “The Struggle for Sustainable Land Managementand Democratic Development in Kenya: A History of Greed and Grievances, Chapter 4”, inK.S. Amanor and S. Moyo (eds.), Land and Sustainable Development in Africa (London andNew York: ZED Books, 2008), pp. 100–123.

Kanyongolo, F., “Law, Land and Sustainable Development in Malawi, Chapter 3, in K.S. Amanorand S. Moyo (eds.), Land & Sustainable Development in Africa, Zed Books, (London & NewYork, 2008), pp. 83–99.

Kelly, A., Property and Negotiation in Waza National Park. Land Deals Politics Initiative WorkingPaper No. 21 (2013).

Land Rights Research and Resources Initiative, Accumulation by Land Dispossession andLabour Devaluation in Tanzania. The Case of Biofuel and Forestry Investments in Kilwa andKilolo (Dar es Salaam, 2010).

Lee Peluso, N. and C. Lund, New Frontiers of Land Control: Introduction, 38 The Journal ofPeasant 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 andH. Kijo-Bisimba (eds.), Law and Justice in Tanzania: Quarter of a Century of the Court ofAppeal (Dar es Salaam: Legal and Human Rights Centre and Mkuki na Nyota Publishers,2007).

McMichael, P., Land Grabbing as Security Mercantilism in International Relations, 10Globalizations no. 1 (2013).

Mesaki, S., Recapping the Meru Land Case, Tanzania, 13 Global Journal of Human SocialSciences, 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 forRestructuring 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, 13The Journal of Peasant Studies no. 3 (2008).

Noe, C., Contesting Village Land. Uranium and Sport Hunting in Mbarang’andu WildlifeManagement Area, Tanzania. Land Deals Policy Initiative Working Paper 15 (2013).

North, D., J. Wallis and B. Weingast, Violence and Social Orders A Conceptual Frameworkfor Interpreting Recorded Human History (Cambridge: Cambridge University Press, 2009).




Nyerere, J., “National Property”, in J. Nyerere (ed.), Freedom and Unity (Oxford: OxfordUniversity Press, 1966).

Palmer, R., Select Bibliography (1) on Reports on Biofuels, Land Rights in Africa and Global LandGrabbing, 2006–2013 (Oxford: Mokoro Ltd, 2013).

Patnaik, U. and S. Moyo, The Agrarian Question in the Neoliberal Era Primitive Accumulationand 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 andwater security, (Abingdon: Routledge International Handbooks, 2013), pp. 24–42.

Ramaswamy, D., . Comments on Agricultural Investment in Ethiopia’ (2013), available at:<http://www.kysq.org/docs/Ramaswamy.pdf>, 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 inAfrica – With a Focus on West and Central Africa (Washington, DC: Rights and ResourcesInitiative, 2013).

Scoones, I., R. Hall, S. Borras, B. White and W. Wolford, The Politics of Evidence: Methodologiesfor 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 LandNetwork, Land Concentration, Land Grabbing and People’s Struggles for Land (Amsterdam,2013).

United Republic of Tanzania, Report of the Presidential Commission of Inquiry Into LandMatters. Volume I Land Policy and Land Tenure Structure (Dar es Salaam: The Ministry ofLands, Housing and Urban Development, Government of the United Republic of Tanzania incooperation with The Scandinavian Institute of African Studies, Uppsala, Sweden, 1994).

Verhoven, H., “Sudan and Its Agricultural Revival: A Regional Breadbasket or Another Mirage inthe 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 watersecurity (Abingdon: Routledge International Handbooks, 2013), pp. 43–56.

Werner, W., A Brief History of Land Dispossession in Namibia, 19 Journal of Southern AfricanStudies 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 Landand 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: <www.Reuters.com/

assets/print?aid=USBRE921L0Y520130322>, 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, Arabinvestors in sub-Saharan Africa are no better than “cowboys” in a lawless“African Wild West” in which they land grab, raid resources and violate thehuman rights of the traditional owners of the land. This paper questions thebasis for that consensus and looks more deeply at the evolving partnershipsbetween African and Arab investors in the land context as African governmentsseek to chart their own particular paths of development. The paper takes a“macro” and contextual approach, linking historical, political economy andlegal 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 landacquisitions 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

*Corresponding author: Salim Farrar, Law School, University of Sydney, Camperdown, NSW,Australia, E-mail: [email protected]

1 Barbara Stocking, CEO Oxfam, quoted in Oxfam, “Land Sold Off in Law Decade CouldGrow Enough Food to Feed a Billion People,” Press Release, 4 October 2012, available at:<http://www.oxfam.org.uk/media-centre/press-releases/2012/10/land-sold-off-in-last-decade-could-grow- enough-food-to-feed-a-billion-people>, accessed 12 November 2013.2 See: GRAIN, World Bank Report on Land Grabbing: Beyond the Smoke and Mirrors, availableat: <http://farmlandgrab.org/15542>, 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 andDevelopment Law Journal (2010), 507–523.




petrodollars and desperate to meet demands of their increasingly restive popula-tions, stand accused of exploitation and buying up vast tracts of African landwith noone 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 whichhave been discussed in recent academic commentaries. These include doubtsover the accuracy of land acquisition data4; the arguable manipulation andselection of facts to fit unarticulated premises5; uncertainties over the precisemeaning of a “land grab,”6 over what is being measured, and whether there hasbeen any “grab” in actuality7; and, in addition, the relevance of law, rather thanits absence, to this phenomenon.8 When we add to this mix widespread reportsof a variety of African communities “dispossessed” of their lands, and that theperpetrators are “foreigners”,9 in particular “Arabs”,10 it is difficult to avoid theimpression that facts are being selected, and distorted, to construct a particularimage that fits popular prejudices.

This is deeply troubling when we contextualise the debate within the lawand development discourse and the current emphasis on “partnerships” and“inclusiveness” in development.11 If we regard development as a global (andlocal), rather than a “western” responsibility, to disproportionately cast blame

3 Jose Graziano da Silva, Head of the UN Food and Agriculture Organization (FAO), likened thesituation 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: <www.upi.com/Business_News/Energy-Resources>, 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 inLand 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 andChange, 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, 29Journal 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 andthe 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

244 S. Farrar



on Arab (Chinese or South Korean) investors for trumping customary land rightsprovides a signal to policy makers that Arab (et al) investors (private, state-owned, national and international) cannot be trusted partners in African devel-opment and that measures need to be taken to limit their “malign” influence andto keep vulnerable African communities within a protective western embrace.

The emphasis also distracts attention from the important role played by Africangovernments12 themselves: in deciding what model of development they want tofollow; their approach to landownership; the laws they have passed and decided toimplement, and the development partners they wish to have. None of the aboveshould be taken to imply that this paper is looking to explore whether Arabinvestors 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 andinclusivity of a development program are all important questions and requirevigorous empirical and contextual analysis, as well as verification.13 It would alsodemand extensive and prolonged field work which is beyond my remit.

The purpose and scope of this paper is more modest and focuses instead onbroadening the terms of the debate and asking questions of an apparent con-sensus on the basis of freely available and accessible (though not independentlyverified) data and of the secondary literature; namely, is there unequivocalevidence of a neo-colonial “scramble” for Africa? And what role, if any, areArab 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 themeaning of colonialism and its application to Africa but we also need to assessthe degree of participation and control of Africans, in charting their own path ofeconomic development. Though far from complete, it is hoped some limitedconclusions can be drawn through an analyses of constitutional, land and invest-ment laws and contracts in land deals. Legal and document analysis says nothingabout actual implementation, but it may indicate powers to do so and thus bearson whether Africans are active partners in their own development.

To explore these questions, the paper takes a “macro” and contextualapproach, linking historical, political economy and legal analysis with a case study.

at: <http://www.odi.org.uk/sites/odi.org.uk/files/odi-assets/publications-opinion-files/7809.pdf>,accessed 29 October 2013.12 See: T. Lavers, “Land Grab” as Development Strategy? The Political Economy of AgriculturalInvestment 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.

Arab Acquisitions in Sub-Saharan Africa 245



2 From colonial past to post-colonial present:exploiting African development

The ‘tripartite historical periodization’14 of pre-colonial, colonial and post-colonialrooted in the domination of the imperial powers in the late nineteenth centuryperhaps distorts the continuity of African history and over emphasises theimpact of Europeanization on African development. “Colonialism” can mean anumber of different things and need not refer only to European domination andexploitation 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 theAfrican continent17 for more than two thousand years. Usually (but not always)preceded by military conquest and domination, it began with the Phoeniciansand Greeks, continued with the Romans and Persians, then the Arabs18 and theOttomans,19 and “finally” the Europeans. Africans have also internally colonisedother African regions (and beyond) and were the original “frontiersmen”.20

Indigenous Africans and settlers have shared in the colonising process andshared in the development of human settlements in different regions of aharsh and sometimes unforgiving environment.21 They have fought, traded,inter-married, learned, worshipped, governed and suffered together. They havealso blended and assimilated in varying degrees, subject to natural geographicand 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 andJ.M. Nordin (eds.), Scandinavian Colonialism and the Rise of Modernity: Small Time Agents in aGlobal 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 easterncoastal regions. We have little knowledge of the progress and process of human settlementsouth of the Sahara and away from the coastal areas because of the absence of written recordsand 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 InternationalJournal of African Historical Studies, no. 3 (1974), 367–390.

246 S. Farrar



Between the seventh and fourteenth centuries, gold, wheat, slaves and othermerchantable items all made their way across the Sahara to the Middle East.Building on indigenous commercial networks, this facilitated maritime linksbetween West, Central and East Africa that fostered Africa’s economic and socialdevelopment and established thriving sea ports (especially in the North).23

According to John Iliffe, had it not been for the Black Death in the fourteenthcentury, which decimated African populations, the benefits could have spreadmore widely into the hinterlands.24 As it was, North Africa went into decline forthe next five centuries and the first contact the tropical centre had with theoutside world was with the slave trade, which further depleted African popula-tions 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 landacquisitions in Africa wish to equate. For them, it is the later European period ofdomination and the historic “scramble for Africa” in the 1890s that is mostinstructive as it marks the emergence of global capitalism and the partitioning ofAfrican land and regions to suit global, rather than local, markets.26 Europeanpowers realized at an early stage the continent’s comparative advantage lay inagricultural export and plundered its natural resources. Rather than develop truemarket economies and the institutions in which the natural forces of competitioncould have benefited both locals and settlers (as they had in Europe, the Americasand Australasia), through force of arms and military threats, European colonialsset up structures to extract resources27 and appropriated land to provide theirinvestors not only with cheap land they could control but also with a very cheapsource of local labour.28 Even in those countries where land remained in Africanownership, the services sector was controlled and monopolised by theEuropeans.29 This is not to deny some political and economic benefits to localpeoples filtered down as a result of the abolition of the trans-Atlantic slave trade(which Europeans had begun); the provision of mechanised transport and infra-structure; 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 andJ.A. Robinson, The Colonial Origins of Comparative Development: An Empirical Investigation, 91The 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 inCentral and Southern Africa (London: Heinemann, 1977).29 G. Austin, “African Economic Development and Colonial Legacies”, 1 InternationalDevelopment Policy, no. 11 (2010), 8.




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 theEuropean markets and to develop local elites favourable to serving Europeaninterests, than to promote and develop economies for local Africans.

Even in post-colonial relations with “independent” Africa, where the termi-nology of “development” has supplanted “extraction,” aid programs – ostensiblyto assist sovereign African states to implement their visions of development –have been often “tied”32 and designed to benefit the donors by providingguaranteed export markets for donor producers, with the effect of distortinglocal markets and depressing local entrepreneurialism. While this was mostevident between 1973 and 1985, and fell back in the 1990s because of politicalpressures 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 2005which was one of the key sticking points at the Busan Summit.34

Notwithstanding current UN agency preference for “development partner-ships”35 and the need for developing countries to “own” their models of develop-ment,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 propor-tion of untied aid of all DAC countries. See: E.J. Clay, M. Geddes and L. Natali, Untying Aid: Is Itworking? An Evaluation of the Implementation of the Paris Declaration and of the 2001 DACRecommendation of Untying ODA to the LDCs (Copenhagen: Danish Institute for InternationalStudies, 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: <http://www.oecd.org/development/untyingaidtherighttochoose.htm>, accessed 13November 2013.34 “Tied Aid Debate Tests Donor Ambitions Before Busan Summit”, Guardian, 1 November2011, available at: <http://www.guardian.co.uk/global-development/poverty-matters/2011/nov/01/tied-aid-debate-busan-summit>, accessed 9 November 2013. The Busan Summit in 2011 wasan attempt by world leaders to match aid effectiveness to the Millennium Development Goals toreduce 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 KnowledgePlatform, available at: <http://sustainabledevelopment.un.org/partnerships.html>, accessed 9November 2013.36 See further: S. Park and A. Vetterlein (eds.), Owning Development: Creating Policy Norms inthe IMF and World Bank (Cambridge and New York: CUP, 2010).

248 S. Farrar



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 onMiddle Eastern oil, have sought alternatives in the form of biofuels and lookedto cultivate appropriate land. Similarly, China, with population pressures anda rapidly expanding economy, has been forced to go global in its search for asustainable and cheap food supply. Also Arab states, especially those in the northof Africa and the Gulf Cooperation Council, have lost food and water self-suffi-ciency37 and increased their level of imports; a search that has assumed greaterurgency 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 thecontinent consisting of arable land, and only 60 persons per square mile(compared to 200 persons per square mile in Asia).40 The process of acquisitionhas 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 particularAfrican state rather than with individual land owners.41 Chinese government–sponsored investors, big western corporations, Arab sovereign wealth funds andhigh net-worth individuals, have negotiated their terms directly with Africangovernments and governors. If the negotiated land deals were in relation to landthat was genuinely vacant and “terra nullius”, our discussion of these evolvingpartnerships in development would not be problematic and would provide apowerful counterargument to accusations of foreign exploitation and interfer-ence. Indeed, as the case study will illustrate, African governments have invitedin foreign investors as part of their deliberate economic development strategiesto boost foreign exchange earnings, to develop infrastructure, local employmentopportunities 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 extensivesubsidies and water-intensive production. Wheat production is planned to be phased outcompletely by 2016 because of the progressive depletion of non-renewable fossil water. Seefurther: Cotula et al. (2009), supra note 6, p. 53.38 It is not asserted that economic reasons alone caused the so-called Arab Springs. Ratherthey 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 theArab 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 inFarmland: 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 lowestincidence of property rights in the world.42 Lavers (2012), supra note 12, p. 105.




land is customarily owned by groups of pastoralists and rural communities whohave not been properly consulted in the course of land deal negotiations, norprotected from eviction, or even compensated, because their rights are notgenerally recognized or incorporated into statutory land laws. Even wherestate laws have devolved decision-making to local regions, state authoritiesand political elites, rather than the local land users, make the decisions, dictateterms and permit investor concessions, whether this be in the interests of thosecommunities or not.43

Given the scale and the speed at which projected land acquisitions in Africaare taking place,44 and some evidence of involuntary land seizures,45 accusa-tions of a “new colonialism”46 are not without substance. But to what extentdoes this also hold true for Arab investments in Africa, especially in the sub-Saharan region? In this case, is it more about a genuine partnership andrecognition of mutual interests, than of foreign exploitation and extraction ofresources? If there is a form of colonialism, is it more in keeping with earlierpatterns than late nineteenth century imperialism?

3 Arab engagement with Africa

As detailed earlier, historical Arab engagement with Africa is not synonymouswith colonial, in the sense of foreign exploitation for, first and foremost, many“Arabs” became “African”. They have been intimately linked, over a course ofmore than a thousand years, through language, culture and, of course, religion(Islam).47 Some North African “Arab” states proclaim they are “African”, withexplicit references to that effect in Algerian, Tunisian, Libyan (in its 1951Constitution at least), Moroccan and Mauritanian constitutions. Thirteen mem-bers of the Organisation of African Unity (OAU) are also Arabic-speaking andpredominantly 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, 3June 2009, available at: <www.ethiopianreview.com/content/9937>, accessed 13 November2013.46 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 inAfrica (London: Croom Helm, 1985), pp. 58–74.

250 S. Farrar



Islamic Cooperation (OIC). Notwithstanding the historical legacy of slave raids,the trans-Saharan slave trade, and tensions in the early 1970s over the stance ofsome African states (e.g. Ethiopia) on Israeli occupation of Palestine, in morerecent times they have shared similar stances on colonialism and economicdevelopment and tended to vote en bloc at the UN.

A modern expression of state and institutional fraternity48 has been indevelopment funding. Rather than treat all African countries equally, Araband sub-Saharan African (i.e. largely Islamic) countries have been the pre-ferred recipients,49 whether this has been channelled through national (e.g. ofKuwait, Saudi Arabia and UAE) or the multilateral agencies (Arab Bank forEconomic Development in Africa; Arab Fund for Economic and SocialDevelopment, and the Islamic Development Bank – which is funded predomi-nantly 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 procurementof donor export goods and services; a factor clearly distinguishing western aidfrom Arab aid.51 Indeed, tying aid and loans to donor export industries wouldbe anathema to Arab states who, being members of the Islamic DevelopmentBank, and upholders of Islamic values (at least in principle), would fall foul ofIslamic definitions of usury (“riba”) and would be “at war with God and HisMessenger” if they did.52 This is not to say that religious motives havenecessarily underpinned Arab relations with their African brethren53; political

48 The references to “fraternity” are directed at governmental and official levels and to recentpolitical and institutional relationships. For an early critical account of the Arab-Africanrelationship, 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 andInvestment 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 thatdraws a benefit to the lender is usury”. Islamic scholars included not just interest but also loansmade conditional upon the donors receiving benefits “in kind”, such as cheaper rents, servicesor products. See M. Umer Chapra, The Nature of Riba in Islam, 2 The Journal of IslamicEconomics 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 Africanmarkets. In the 1980s and 1990s, Arab exporters looked predominantly to European andIndustrial markets. See: Z. Iqbal (ed.), Macroeconomic Issues and Policies in the Middle Eastand North America (Washington, DC: IMF, 2001), p. 271.




self-interest have clearly been factors –54 but common interests have alsolinked them.

Examples of collaboration include the recent deal signed between theAfrican Development Bank group and the Islamic Development Bank (IDB) inDecember 2010. This comprised US $500 million from each institution over aperiod of 3 years, starting from 2011, for co-financing sovereign projects in theirMember Countries. The funding focuses on infrastructure, water and sanitation,regional integration, education, social infrastructure, institutional capacitybuilding, training, gathering statistics, as well as food security.55 Perhaps ofgreater importance is the role the IDB is playing in managing regional foodsecurity and its attempts to offset the negative impacts of unstable food priceson the poorest of the African LDCs. Of US$ 1,158 million approved by IDB Boardof Governors for development financing projects in its last session (the most ithas ever dispensed), $275 million was allocated specifically for agriculture,livestock and water supplies in rural areas in a number of African MemberCountries, including: Cameroon, Chad, Uganda, Benin, Burkina Faso, Mali,Niger, Mauritania and Togo.56 Examples of IDB sanctioned development projectsin the region are given in the Tables 1 and 2.57

Until the late 1980s, however, fraternal and cultural bonds did not result insignificant investment and trade flows.58 This changed in the 1990s, with a shifttowards investment, especially in the direction of the North African states. In thelast decade, the shift has been dramatic with extensive funds flowing to Sub-Saharan 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, blessedwith excess liquidity from favourable oil prices, have had to look for alternativeinvestment destinations because of saturated markets in the West and Arabstates.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 DevelopmentBank, “News,” 23 December 2010, available at: <http://www.isdb.org/irj/portal/anonymous?NavigationTarget=navurl://71cd39288bf9ac31b2b312401ca8eea7>, accessed 13 November 2013.56 See the IDB News Portal, available at: <http://www.isdb.org/irj/portal/anonymous/idb_-news_en>, accessed 13 November 2013.57 I have omitted many IDB projects and listed only those which tally with countries wherethere 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: <http://www.islamicfinancenews.com/2012_IFNsupplement_Africa.asp>, accessed 13 November 2013.60 Busari and Osunubi (2009), supra note 49, pp. 21–22.

252 S. Farrar



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(interest-free).

Education: new NouakchottUniversity Campus Project

2) In 2009, US$ 108 million for participationin the Rehabilitation Program of the NationalCompany for Mineral Industry (SNIM)

* The IDB Group has approved more than US$757 million (as of Feb 2013) for developmentprojects in various development sectors inMauritania, including several foreign tradeoperations in the country.61

Mali 1) 2010. US$ 40.8 million Loan and Istisna’afinancing for the Djenne AgriculturalDevelopment Project.

Development of agriculture andimproving water supply

2) US$ 16 million Loan financing for theKalabancoro Water Supply Project.

*As of 24 June 2012, the IslamicDevelopment Bank had approved projectsworth US$ 756 million for 90 operationscovering development projects, tradefinancing and private sector support.62

Sudan 2009.

1) US$ 12.6 million loan from IslamicSolidarity Fund for Development, WaterHarvesting Project for Agro-PastoralDevelopment in Al-Gadarif State.

2) US$ 19.50 million Leasing financing forthe Cotton Ginning Plants Project

3) US$ 11 million Leasing (SupplementaryFinancing) for the White Nile Sugar Project

4) US$ 10.3 million Instalment Sale for theDevelopment Project of the Faculty ofEngineering, University of Khartoum.

5) US$ 11.4 million Loan þ TechnicalAssistance Grant for Microfinance SupportProgram

6) Nov 2012, US$ 20.3 million for RainwaterHarvesting in White Nile, South Kordofan,Sinnar and Darfur States.

Securing enough water during dryseason for both agricultural andpastoral purposes to improve lifeconditions for rural population andincrease their income.

Assist the Faculty of Engineering inproducing qualified engineeringgraduates equipped with neededskills to support communitydevelopment

61 See the IDB News Portal, supra note 56.62 Ibid.




making the environment more investment friendly;63 and third, the pressingneed for food security in Gulf States.64 GCC priorities have been reflected inthe types of investment in SSA. While telecommunications, tourism, banking,transport and infrastructure have all been targeted,65 the focus of Arab invest-ment has been on agriculture and land acquisition.66

Even before the most recent food crisis in 2008, Arab countries had shownparticular interest in agricultural investment in Africa and had focused on coun-tries where there existed clear fraternal ties, backed up by bilateral and regionalinvestment treaties. A good example is provided by Sudan67 which deregulatedand liberalised its investment framework, and provided numerous tax concessionsfor interested investors. It also joined the Common Market for Eastern andSouthern 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% oftotal foreign direct capital investment in agriculture in Sudan.68 While this

Table 2: Islamic development bank assistance to Ethiopia since 2008

Ethiopia 2009.

1) The BED approved US$ 16 million grant,10 year program.

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

3) US$ 330,000 Special Assistance Grant.

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

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

Support the Muslim community inEthiopia through providing healthand education services.

Education.

Expansion of Waliso ChildrenVillage, Waliso.

Education.

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 thetarget of failed program of investment and land acquisition in the 1970s. Arguably, it alsocontributed to the protracted civil war between the north and south. For further details, seeWoertz (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: <http://www.fao.org/fileadmin/templates/est/INTERNATIONAL-TRADE/FDIs/Egy_Mor_Sud.pdf>, accessed 31 October2013.

254 S. Farrar



investment facilitated economic growth, due to the capital-intensive nature ofproduction taken by Arab FDI and the tendency to favour already developedregions, it did not produce high levels of employment nor reduce income dispa-rities across the country. Further, those sectors and sub-sectors which involved theleast participation of the rural poor were those with the highest economic growthrates. Thus, while the Arab investment might have served the interests of govern-ment and certain elites, arguably it exacerbated the situations of the rural poor andsocietal tensions in an unstable environment.69

4 Arab land acquisitions since 2008

The Table 3 lists known land deals made between African governments and Arabcorporations. It details the nature of the deal, the method of land acquisition(where applicable) as well as ostensible purposes. The table provides an over-view of the Arab “land rush” since 2008, but it says nothing about the actualimplementation of those deals.

A cursory analysis of these investment agreements indicates stateinterests and participation from across the region: the Emirates, Egypt

Table 3: Arab land acquisitions since 2008

Company, Nationality/investment nation Deal Purpose

Al Ain National Wildlife(Emirati)/South Sudan (July2008)

30-year lease of 1,680,000hectares; revenue sharing of70–30% between companyand government

Tourism/Development

Citadel Capital Group (throughConcord Agriculture) (Egypt)and South Sudan (UnityState) 2009

25 year land lease of 105,000hectares; annual lease fee$125,000 (10 year taxexemption)

Food security: maize andsorghum production → CitadelCapital agreed to sell producelocally in order to serve localfood insecurity.70

(continued )

69 Ibid., p. 121.70 “South Sudan: More Cases of Land Grabs in South Sudan”, 26 March 2013, South SudanNews Agency, available at: <http://www.southsudannewsagency.com/opinion/articles/more-cases-of-land-grabs-in-south-sudan>, accessed 12 November 2013.




Table 3: (Continued )


Emirates Capital (merchantbank headquarters inDubai) and GPS3Investments (Londonbased)/South Sudan

“Strategic Development Fund”managed by Emirates CapitalUS$ 55 Billion 5 yeardevelopment plan (phase 1) –multiple strategies umbrelladevelopment fund with sub-funds for infrastructure,Agriculture, Energy andMining.71

Local development ofinfrastructure, foreigninvestment in agriculture,energy and mining.

Abu Dhabi Fund forDevelopment/Sudan

30,000 hectare lease; free72 Food security; exporteverything to UAE

Al Ghurair Foods (joint venturewith a Gulf Agriculturalcompany)/Sudan

100,000 hectares in 99-yearlease

Food security; grain73

FORAS InternationalInvestment Company (SaudiArabian)/Mali

5,000 hectares (200,000already acquired according toInternational Rice ResearchInstitute)

Food security; rice production

Libyan African InvestmentPortfolio (Libya) and Mali

100,000 hectares, free for 50years, duties and activities taxexemption for 30 years,company tax exemption for 8years, import tax exemptionfor 3 years

Food security: rice and cattleproduction

MALIBYA (Libyan sovereignfund)/Mali

50-year lease of 100,000hectares; land free, only watercharged

Food security; rice, tomatoand livestock.Development: irrigation canaland roads

(continued )

71 “Emirates Capital Mandated to Manage the First-Ever Investment Fund Initiated by GPS3Investments and Dedicated to the Development of the New Nation of South Sudan”, 18 March2013, Islamic Finance News, available at: <http://global.factiva.com.ezproxy2.library.usyd.edu.au/ha/default.aspx>, accessed 12 November 2013.72 “Abu Dhabi Develops Food Farms in Sudan”, 2 July 2008, Guardian, available at: <http://www.guardian.co.uk/environment/2008/jul/02/food.sudan>, accessed 12 November 2013.73 “Al Ghurair to Seal 99-Year Farmland Lease in Sudan”, 19 February 2012, Gulf News,available at: <http://gulfnews.com/business/general/al-ghurair-to-seal-99-year-farmland-lease-in-sudan-1.983321>, accessed 12 November 2013.

256 S. Farrar



(through Citadel Capital75), Iran (though clearly not Arab), Libya and SaudiArabia. The deals have not emerged from a vacuum, but have appeared froma stepping up of trading and diplomatic initiatives over the last decade. Inseveral cases, their interests reflect geographical proximity and long-standingties; 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 Leonerelationships, the connections are not immediately obvious, but reflect increas-ing bilateral ties between their countries,76 and possibly geo-political strategy.77

Table 3: (Continued )


Saudi Star AgricultureDevelopment (Saudi-Ethiopian businessman)and Ethiopian government(2011)

50-year 10,000 hectare lease,free of rent; acquisition of500,000 hectares planned

Food; rice, maize, teff,sugarcane and oilseed. Riceprimarily for export; solddomestically if not meetingexport standards.

Sepahan Afrique (Iran)/SierraLeone (Marampa and BuyaRomende Chiefdoms)

10,117 hectares (surface andbelow surface rights) –promised land owners USD20,000 in the first year, USD40,000 in the second year, andUSD 50,000 in the third year

Palm oil, rice production andminerals

The National Prawn Companyand Al Rajhi InternationalCompany for Investment(Saudi) and Mauritaniagovernment

Memorandum ofUnderstanding – developagricultural sector ofMauritania; proposed projectsestimated at value of 1 million

Food security (both nations),economic growth inMauritania, and investmentgoals for business74

74 “Government of Mauritania and Al-Rajhi Sign MOU to Transform the Food SecurityRoadmap in the Muslim World and Collaborate on $1bn Investments”, 11 February 2013,Islamic Finance News, available at: <http://global.factiva.com.ezproxy1.library.usyd.edu.au/ha/default.aspx>, accessed 12 November 2013.75 This is a leading Egyptian investment company with a pan-African investment portfolio, aswell as with investments in the Middle East. See further Citadel Capital website at: <http://citadelcapital.com/about/who-we-are/>, accessed 13 November 2013.76 “Iran-Sierra Leone Sign Three Government Cooperation Agreements”, 15 June, 2005, IRNA,available at: <http://www3.sari.irna.ir/en/News/80800522/Politic/Iran,_Sierra_Leone_to_expand_economic,_cultural,_parliamentary_ties>, 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, beforethe Gulf Wars, from Iraq. But in June 1987, it severed diplomatic relations with Iran due to its




Mauritania’s close ties with Saudi Arabia have developed without interruption tothe extent of the forging of a security accord between the two nations inDecember 2011.78 Emirati companies have focused primarily on Sudan andSouth Sudan and reflect the influence of large numbers of Sudanese workingin the different Emirates,79 and in the case of the latter, relaxed investmentrules80 and specific government overtures to invest.81

African governments, therefore, have not been passive participants. Theyhave actively engaged the Gulf Arabs, in particular, to invest in the region to fillthe gap left by the Europeans and Americans reeling from the effects of the “creditcrunch” and budgetary austerity measures. As a general rule, they also appear toretain overall control of these investments through government land lease dis-bursements, rather than by sale. This is typical of land alienation across most ofAfrica and reflects state ideology of patrimony.82 On the one hand, it might beargued that because of their length (25, 30, 50 and 99 years), these leases are as agood as a freehold, taking land out of the possession of current users for genera-tions and thus appear exploitative.83 But on the other, they indicate the govern-ment’s intention that these investments should be for the long term and willdemonstrate Arab commitment to the country through their willingness to engagewith 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, availableat: <http://articles.latimes.com/1987-06-29/news/mn-228_1_diplomatic-relations>, accessed 12November 2013. Relations and tentative trade links have been restored since.78 “Mauritania, Saudi Arabia Sign Security Accord”, 5 December 2011, Magharebia, availableat: <http://magharebia.com/en_GB/articles/awi/features/2011/12/05/feature-01>, accessed 12November 2013.79 During the Sudanese elections in 2010, over 8000 voters were registered at three pollingstations across the Emirates. See, “Sudanese Expats Cast Votes in the UAE”, 11 April 2010,Khaleej Times, available at: <http://www.khaleejtimes.com/DisplayArticle09.asp?xfile=data/theuae/2010/April/theuae_April278.xml&section=theuae>, 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 andprovisions relating to security and diversity of tenure. See “Government adopts land policy inSouth Sudan”, 26 February 2013, Sudan Tribune, available at: <http://www.sudantribune.com/spip.php?article45633>, accessed 12 November 2013.81 In March 2013, high-level talks took place between the South Sudanese Vice President andthe UAE’s Minister of State for Foreign Affairs, over UAE funding and management (for a periodof 25 years) of a new airport for its new capital in Tali and a new hospital, with a view to makingthe country an economic hub in Africa. See: “South Sudan Seeks Big Investments from UAE”,The National, 22 March 2013, available at: <http://www.thenational.ae/news/uae-news/politics/south-sudan-seeks-big-investments-from-uae>, accessed 12 November 2013.82 See Alden Wily (2011), supra note 8, p. 736.83 Ibid.

258 S. Farrar



be a meaningful compromise given the security situations in many of thesecountries, the high investment risk and the apparent preference of prominentArab agro-businessmen not to invest and deploy large sums without actualtransfers of ownership by sale.84 The power to insert clauses and conditionswithin leases, as well as to sanction breaches, is also potentially significant andan important control on the activities of the Arab investors.

NGOs, such as the American-based Oakland Institute, however, are notideologically predisposed towards global markets and these export-drivenmodes of economic development. They are more concerned at what they seeas the exploitation, abuse and economic/social disruption caused to pastoralistsand the possible dangers to local and food water security. They stress the termsof these leases are very favourable to Arab investors: quantity of land leased outis extensive (1,680,000 hectares in the case of the Al Ain National Wildlifeproject in South Sudan); transaction costs are low, with leases negotiatedbelow market rates or for free (see Table 3, above) and in many cases govern-ments are unable to redistribute a percentage of the profits through taxationrevenue because of generous tax exemptions (especially the Libyan AfricanInvestment Portfolio in Mali).

But the leases are not without potential local dividends. First, the land canbe put to more productive use through use of better farming technologies iffunds are mobilised. The populations of several of the target countries are foundin rural areas with agriculture-based economic production and rely on rain-fedsubsistence farming rather than modern methods.85 Second, local (in addition toexpatriate) opportunities for employment and training is often promised (see thecase study below). Third, new roads and infrastructure are also promised (e.g. inthe case of Mali and South Sudan) that would facilitate not just transportation ofArab exports but trade more generally. Fourthly, not all agreements precludedomestic supply of produce, such as the agreement between the Saudi-basedNational Prawn Company and Al Rajhi International Company for Investmentand the Mauritania government). There is no doubt that these African govern-ments have provided incentives and preferential terms to Arab investors in these

84 In his interview with Saudi agro-businessman, Turki Faisal Rasheed, over Saudi landacquisitions in Sudan, Woertz notes: “Apart from smallholder ownership along the Nile mostof the land in Sudan is nominally owned by the state. It can only be leased by foreigners, butnot purchased. For Al-Rasheed this is a deal breaker. The payment of compensation to previoususers of land that is slated for investment should be borne by the Sudanese government, heargues”. 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 AgriculturalInvestments in Africa: the Case of Ethiopia, paper presented at the World Bank Conference onLand Policy and Administration (Washington, DC, 26–27 April 2010), p. 3.




agreements, but these are common “investor-packages” at the global levelbetween non-Arab and non-African investor-state relationships.86 The intentionis to attract private foreign investment, with the hope that, in time, it willstimulate the local economy and bring the same levels of industrialisation andeconomic development to African countries as other more advanced economies,in Asia and elsewhere. It is not necessarily exploitative, or neo-colonial, in thesense that it is a local African government buy-in to market forces and globaltrends. The difficulty, however, is that Arab investors are not seeking to invest ina cultural vacuum and may well be ignorant or insensitive to local conflicts,ambiguities to land ownership and use, and, by practical necessity, defer to thedecision-making of government official and corrupt local elites in order toachieve a deal. Whether “non-inclusive” negotiations will realise in practicethe economic and social benefits both contracting parties envisage, is anothermatter.

In the following section, I bring together the Arab-African developmentpartnerships by way of a case study on Ethiopia. I recognise Ethiopia has beenthe subject of a number of previous studies and the “land grabbing” debatewould be enriched through empirical work in other sub-Saharan countries.Ethiopia has been selected, however, because it is one of the “target investmentcountries” of the Gulf and Saudi Arabia87 and where land acquisition deals havebeen most documented and controversies recorded. Ethiopia is also differentfrom Sudan and other target countries, such as Mali and Mauritania, because ofits unique ethnic composition and structural placing in relation to the Muslimand Arab world. Although there exists a large Muslim minority (see below),Ethiopia is religiously pluralist, rather than an Arab/Muslim/African state, andcontrolled by a Christian majority. Nor is it a member of the Organisation ofIslamic Cooperation (a 57-state grouping of generally Muslim majority nations)and party to its preferential trade agreements. The case study, therefore, addsfurther variables to the nature of the development partnerships being formedbetween Arab and sub-Saharan African states.

However, this case study also has its obvious limitations and, as with earlierresearch, is still based on limited data. It has been difficult obtaining access toland deal agreements, and only one contractual agreement is subjected to anyanalysis in this study. Notwithstanding these limitations, in conjunction with thebroader contextual and historical factors, I suggest some indications, if notdefinitive 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 Lawand 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.

260 S. Farrar



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

5 Ethiopia

Arguably the cradle of humanity, Ethiopia has a long and proud history (thoughtortured in recent times). Possibly of all African countries, Ethiopia is iconic of thecontinent’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 alsodistinguished by their religion – Eastern Orthodox Christian and Muslim, respec-tively). There are no accurate statistics on the number of Muslims in Ethiopia ortheir proportion to the rest of the population. The most recent national census in2007 estimated they comprise 28 million and 34% of total Ethiopian population; thePew Forum Survey in 2009 put the figure at 30%88; others (the Supreme Council ofEthiopian Muslims) argue Muslims are in fact the majority at 52%.89

The links between Ethiopia and the Arab (Muslim) world are ancient andstrong, with migration from the Arabic Peninsular reported during the time ofProphet Muhammad in the seventh century, and the praising of Ethiopia inIslamic texts as a “land of justice” where persecuted Muslims would findsanctuary. Current external relations are diplomatically sensitive and compli-cated by ongoing rivalries, regional upheavals and the emergence and departureof new government figures (following the recent death of former Prime Minister,Meles Zenawi). Nevertheless, political relations with Arab states, in particularwith 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 ofattention from foreign investors – a process that has been the result of changesin government policy in favour of large-scale farming, export-led growth, capi-talist 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-SaharanCountries from Various Sources” in “Islam and Christianity in Sub-Saharan Africa,” availableat: <http://www.pewforum.org/uploadedFiles/Topics/Belief_and_Practices/sub-saharan-africa-appendix-b.pdf>, accessed 12 November 2013.89 “Ethiopia: Muslims had lost touch with Muslim World”, 3 February 2002, InternationalIslamic News Agency (IINA), Interview with Sheikh Abdul Rahman Hussein, President ofSupreme Council of Ethiopian Muslims, available at: <http://www.islamicpopulation.com/africa/Ethiopia/Ethiopia_%20Muslims%20had%20lost%20touch%20with%20Muslim%20world%20.html>, accessed 12 November 2013.




controversially come to be known).90 Although Western Europeans have beenthe biggest investors (an issue not well reported or debated in the media),Middle Eastern investors have been a close second with requests of 537,500hectares of land up to 2011 (21.5% of the total requested).91 The majority of theland requested has not been in populated areas, and where it has touchedalready settled areas, generally speaking this has not been in the Afar andSomali regions92 – where the people are predominantly, if not exclusively,Muslim.93 Rather, much of the investment activity has been in the westernGambela region which, though sparsely populated, has a local indigenouspopulation which is exclusively non-Muslim (84% Christian, 16% Animist).Given that the Middle Eastern investors are Muslim and that the Afar, inparticular, are among the poorest in the region, neglect of their areas mightseem surprising. But it indicates religious identity, as such, is not a determinantof investment (at least in Ethiopia) and it should be remembered that the IDBhas been putting in development money in these regions in any event (see abovetable). It also points to the role of the Ethiopian government directing invest-ment in accordance with government policy94 and Law. In order to promote aninvestor-friendly environment for both Arab and non-Arab investors, theEthiopian government has effected changes to its laws and policies. In termsof investment law,95 the government has implemented an incentive-based sys-tem incorporating tax and customs duty exemptions (again, typical of countriesthat 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 LandInvestments on Income, Prices, and Employment: Empirical Analyses in Ethiopia”, AnnualWorld Bank Conference on land and Poverty (Washington, DC: The World Bank, 8–11 April2013), 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 thearea of trade and investment sectors and wanted especially to enhance trade and investmentrelations with Saudi Arabia, which he thought would benefit both parties because of Ethiopia’sconducive investment environment. See, “Ethiopian Prime Minister holds talks with IslamicDev’t Bank Group President” Sunday, 17 January 2010, Islamic Development Bank News portal,available at: <http://www.isdb.org/irj/portal/anonymous?NavigationTarget¼navurl://71cd39288bf9ac31b2b312401ca8eea7>, 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., “ForeignInvestment Laws and the Role of FDI in Malaysia’s ‘New’ Economic Model”, at chapter 8.

262 S. Farrar



more than 50% of the produce. This can be extended by the Investment Board to7 years in “special circumstances” and for longer periods, according to thediscretion of the Council of Ministers.97 Importation of capital goods, construc-tion materials, spare parts and vehicles (depending on the nature of the invest-ment and the decision of the Investment Board) can also be exempted fromcustoms duty.98

As for land, under the Federal Constitution, ownership to land and allnatural resources is exclusively vested in the Ethiopian state and the peoplesof Ethiopia,99 and it is the state authorities, at Federal and regional levels, whichallocates parcels of land. In fact, the Constitution and government proclama-tions go further and preclude all private alienation and transfers of land by saleor otherwise. Neither Arab investors nor local Ethiopians can own farmlands,outright or in partnership. Nor are Ethiopian communities, under current inter-pretations of Ethiopian law, able to own their lands “in common”.100 TheFederal Constitution and proclamations under the constitution101 only permit“use rights”. Use rights include landholding rights for peasants and pastoraliststo 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. Theyare also subject to compulsory acquisition by the government, provided this isdone for a public purpose. Immovable properties (physical structures) subjectedto compulsory government acquisition must be compensated according to cur-rent market value, but this does not refer to the land itself.103 Where thegovernment gives agrarian land used by pastoralists to foreign investors; there-fore, there is no constitutional provision for compensation.

While the Federal and regional constitutions, along with administrativeregulations, provide certain legal protections and rights for the land-use rightsof peasants and pastoralists, these constitutional rights still depend on imple-menting legislation and the provision of landholding certificates to verify

97 See: Council of Ministers Regulation on Investment Incentives and Investment AreasReserved 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 outcommon ownership by ethnic communities, but this has not been subjected to any reportedlegal challenge in the courts.101 See Proclamation: No 456/2005.102 Ibid, Article 8(1).103 Federal Constitution, Article 40(8).




traditional land use and occupation. The problem is that the relevant imple-menting legislation does not exist country-wide, and state authorities do notaccept customary tenure under this right.104 Notably, the investor – target areasof Gambela and Benishangul-Gumuz, are without the implementing legisla-tion.105 So not only are the customary land-use rights of pastoralists uncertainand indeterminate, they are also particularly vulnerable to arbitrary appropria-tion and annexation without any compensation.

Taken together with the fact the state controls legal entry of investmentsunder an Investment Law which it tailors through a system of incentives andadministrative discretion, these powers to appropriate and dispense land,according to terms that government authorities think fit, indicate both thestrength of the Ethiopian government in the investment partnership with Arabinvestors, and the weakness of the traditional occupiers of agrarian land. Ananalysis of one of the controversial Land Rent contractual agreements in theGambela province provides further evidence of the nature of this investmentpartnership.

On 25 October 2010, the Ethiopian Ministry of Agriculture and RuralDevelopment signed a land lease agreement with the Saudi Star AgriculturalDevelopment Plc.106 This agreement, which incorporates the Abobo DistrictAdministration of Gambela (and not just the government of the FederalDemocratic Republic of Ethiopia), provides a renewable 50 year lease107 of10,000 hectares of rural land for the purpose of rice farming.108 The annuallease rate is 300,000 Birr (approximately US$ 16,000) but is subject to revisionby the government “as the need arises.”109 In addition to the conferring of aright to make productive use of the land, Saudi Star is also granted completeexemption from taxes on repatriation of profits and capital and from all importduties.110

In terms of its obligations under the lease, Saudi Star must conserve treeplantations that have not been cleared for earth works, apply appropriatemethods 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, butfollowing negotiation was replaced in 2010. Saudi Star is a private limited company incorpo-rated 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 SaudiStar 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.

264 S. Farrar



providing for natural resource conservation, as well as conduct environmentalimpact assessment reports.111 The agreement does not permit Saudi Star to holdonto the land without developing it (which otherwise would have had thenegative effect of potentially depriving local pastoralists of valuable land with-out the compensation of economic development) and requires Saudi Star todevelop one quarter of the land within the first year of the signing of theagreement and the receipt of all relevant government permits, and the entire10,000 hectares within 4 years. If and when Saudi Star develops 75% or more ofthe land, it has the right to transfer that portion of the land to another individualor company, but only with the prior permit of the Ethiopian government.112 Theremaining quarter of the land is non-transferable.113 The Ethiopian governmentarrogates to itself the “exclusive right”114 to monitor and supervise implementa-tion of the agreement and can terminate the agreement for “justified goodcause” subject to 6 months prior notice.115

The agreement does not mention what proportion of the produce of the ricefarm will be allocated specifically for export (i.e. to Saudi Arabia) and how muchfor the domestic market. Nor does it contain a term for local jobs or obligateSaudi Star to provide necessary infrastructure, nearby health and medical facil-ities and transportation (though the agreement gives the company the right116).These details (which are clearly not terms of the contract) are mentioned on theSaudi Star’s owner’s website, promising 55% of the food produced will be forlocal markets, 5,000 jobs for locals by the end of 2013 (upon completion of thedevelopment) as well as a commitment to invest in infrastructure, including thebuilding of roads and provision of vocational education.117

Looking at this agreement as a whole, and taking together its legal obliga-tions, rights, exemptions and voluntary commitments, although it is very protec-tive of the investor, it also comes with some benefits for the Ethiopian governmentand 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: <http://www.sheikhmohammedala-moudi.info/gambella-jobs-with-saudi-star>, accessed 13 November 2013. According to reports,the Ethiopian Ministry has required 40% of the yield to be sold domestically; see “SaudiBillionaire’s Company Will Invest 2.5 Billion in Ethiopia Rice Farm”, Bloomberg News, availableat: <http://www.bloomberg.com/news/2011-03-23/saudi-billionaire-s-company-will-invest-2-5-billion-in-ethiopia-rice-farm.html>, accessed 12 November 2013.




training. If the land is not developed within the limited time frame because ofbudget squeezes or problems in deployment of capital, the government retains thepower to take back the land, as it does for any other “good cause” which couldinclude environmental damage or even adverse impact on local populations. It isdifficult 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. SaudiStar is owned by Mohamed al-Amoudi, who was born in Ethiopia and migratedto Saudi Arabia only after he was 19. While he is a now a Saudi citizen and hisfortune derived from conglomerate business ventures overseas, the evidencedoes not point to colonial extraction for the benefit of a foreign power. He isEthiopia’s largest single largest investor118 and professes himself a “develop-ment partner and a great son of his motherland – Ethiopia.”119 Through theinvestment vehicle of MIDROC Ethiopia Investment Group, he owns 41 othercompanies operating in all sectors of the Ethiopian economy, including agricul-ture 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 properlysupervise the implementation of the agreement and look after the interests of allthose who might be affected. Given the close personal relationship between theformer Ethiopian Prime Minister, Meles Zenawi, and Al-Amoudi, and politicalpatronage possibly elsewhere within the landholding system,120 the fear is thatthe “Arab” investor’s interests would most likely override all complaints by localsnotwithstanding the validity and legitimacy of those claims. Second, and contraryto the voluntary FAO guidelines on responsible governance on the tenure ofland,121 the agreement fails to incorporate “due diligence” requirements and riskmanagements systems to avoid infringements of international human rights, as

118 See M. Al-Amoudi’s personal website, available at: <http://www.sheikhmohammedala-moudi.info/>, accessed 12 November 2013.119 See the official MIDROC website, available at: <www.midroc-ethiopia.com.et/md04_citzin-ship.html>, accessed 12 November 2013. Al-Amoudi is not without his critics and he has beenfiercely condemned locally and in the diaspora for his support to controversial former PM MelesZenawi.120 See: L. German and G. Schonenveld, Contemporary Processes of Large-Scale LandAcquisitions in Sub-Saharan Africa: Legal Deficiency or Elite Capture of the Rule of Law? 48World Development (2013), 1–18.121 See: FAO, Voluntary Guidelines on the Responsible Governance of the Tenure ofLand, Fisheries and Forests in the Context of National Food Security (FAO, 2012), availableat: <http://www.fao.org/fileadmin/user_upload/newsroom/docs/VGsennglish.pdf>, accessed12 November 2013.

266 S. Farrar



well as operational-level grievance mechanisms.122 If it had, perhaps the frustra-tions of local stakeholders might not have erupted into the violence that hasscarred, 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 andinvestment has not received a lot of attention in the academic literature, thoughthe religious dimension is not without importance. The Holy Qur’an exhorts thebelievers to cooperate in virtuous matters and in obedience to God,124 as well asto 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 thereligion, and it is also being used in contemporary times. The prevalence ofIslamic banks now opening up across the region,126 and the Islamic branding ofbrokered deals, at least through the Islamic Development Bank (e.g. the US$40.8 million interest-free loan and Istisna’a127 for the Djenne AgriculturalDevelopment Project in Mali) indicates the money being channelled forAfrica’s economic development is not merely for furthering trade and economicdevelopment; 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 admin-istration of Gambela Regional state”, rather than with affected land users directly. Someevidence suggests local opposition to relocations and allegations of human rights’ abuses.See further, “Ethiopia Army Commits Torture Rape”, Human Rights Watch, available at:<http://www.hrw.org/news/2012/08/28/ethiopia-army-commits-torture-rape>, accessed 12November 2013. The Ethiopian Government and Saudi Star vigorously refute these claims; seefurther, M. Al-Amoudi’s personal website, available at: <http://www.sheikhmohammedala-moudi.info/saudi-star-denies-human-rights-watch-claims>, accessed 12 November 2013.Allegations of use of state violence to enforce unpopular land deals extend beyond the SaudiStar project but remain unsubstantiated, according to the chair of the UK Parliament’sInternational Development Committee, Sir Malcolm Bruce; see: “World Bank Told toInvestigate Links to Ethiopia ‘Villagisation’ Project”, Guardian, 19 March 2013, available at:<http://www.theguardian.com/global-development/2013/mar/19/world-bank-ethiopia-villagisa-tion-project>, 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.




Historically, it was the mystic Sufi brotherhoods (turuq) who accompaniedMuslim merchants along the ancient trading caravan routes, to show “all that isgood”. 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 newlyavailable economic resources as a vehicle to promote Islam and “Wahhabist”interpretations of “all that is good.” Countries in Africa, Asia, Europe and theUnited States have all been the recipients of this largesse since the 1970s.128

In addition to the development aid and investment, Gulf States have sentand endorsed Islamic charities and missionaries to accompany “entrepreneurialelites” (such as Al-Amoudi in Ethiopia) that promote their commercial inter-ests.129 In part, the establishment of religious missions overseas has been toprovide employment opportunities for the otherwise unemployable graduates ofthe five religious universities in Saudi Arabia. But it has also been an expressionof 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 mission-aries accompanying the modern trade caravans has been difficult even inWestern countries which have well-developed security structures; in Africa, ithas been almost impossible. From Ethiopia and Somalia in the East, toMauritania, Mali and Nigeria in the West, this has also assumed more sinisterproportions 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 shrinesand de-stabilised the country.132 It is doubtful this was ever an intended con-sequence of African invitations to Gulf Arabs to invest, but it has promptedgovernments (like Ethiopia) to adapt to perceived dangers133 and import ArabSufi 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, supranote 78.132 “Mali crisis: Key players”, 12 March 2013, BBC NEWS, Africa, available at: <http://www.bbc.co.uk/news/world-africa-17582909>, 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, availableat: <https://www.transcend.org/tms/2012/05/ethiopia-are-the-islamists-coming/>, accessed 12November 2013.

268 S. Farrar



indigenous variety.134 As with trade and investment, African governments aretrying 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 benefittingfrom external trade relationships and foreign investment.135 The argumentadvanced 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 Africangovernments towards export-led growth models of development. As part ofthis re-orientation and to facilitate trade and investment, sub-Saharan countries,in particular, have renewed historical and cultural ties with the Arab world andhave seen land and agrarian development in return for Arab food security as auseful vehicle. However, this has not been to the benefit of all communities inrelevant 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 investmentper se but to apply international pressure on investor and investment stategovernments to further enhance participation and ownership rights, strengthenthe partnerships that are developing organically and take further steps tomonitor and manage ideological migration across borders. In addition to theWorld Bank and UN institutions, regional organisations such as theOrganisation for African Unity, the Arab League and the Organisation forIslamic Cooperation (OIC) in particular, could all play a part. Given the OIC’sincreasing prominence in recent years, especially in matters relating to tradeand the involvement of the Islamic Development Bank, its engagement with

134 Furnish, ibid. For detailed analysis of the emergence of Wahhabism and Salafism inEthiopia, 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 ChristianLegacy, 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 todecline (see: UNCTAD, “Global Trends Monitor”, No 8, 24 January 2012, available at: <http://unctad.org/en/Docs/webdiaeia2012d1_en.pdf>, accessed 12 November 2013.




international human rights, and the ascendancy of Saudi Arabia’s InformationMinister to the role of Secretary General of the OIC in 2014,136 it would be apositive 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 memberstates, especially Saudi Arabia, and could incorporate and elaborate upon theIslamic concepts of shura (consultation) and shirkah (partnership) and facilitatethe economic and human development of all relevant stakeholders.

References

Abbink, J., Land to the Foreigners’: Economic, Legal, and Socio-Cultural Aspects of New LandAcquisition 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): <http://www.sheikhmohammedalamoudi.info/gambella-

jobs-with-saudi-star>, accessed 12 November 2013.Al-Arabia, OIC Elects Former Saudi Information Minister as New Secretary General (7 February

2013), available at: <http://www.alarabiya.net/articles/2013/02/07/264981.html>,accessed 6 November 2013.

Alden-Wiley, L., The Law Is to Blame’: The Vulnerable Status of Common Property Rights in Sub-Saharan 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: ProfileBooks, 2012).

Austin, G., African Economic Development and Colonial Legacies, 1 International DevelopmentPolicy (2010).

Baumgartner, P., J. Von Braun, D. Abebaw, and M. Muller, Impacts of Large–Scale LandInvestments on Income, Prices, and Employment: Empirical Analyses in Ethiopia, annualworld bank conference on land and poverty (8–11 April 2013, Washington, DC: The WorldBank).

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: <http://www.bbc.co.

uk/news/world-africa-17582909>, 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: <http://www.bloomberg.com/news/2011-03-23/

136 See: “OIC Elects Former Saudi Information Minister as New Secretary General”, 7 February2013, Al-Arabia, available at: <http://www.alarabiya.net/articles/2013/02/07/264981.html>,accessed 6 November 2013.

270 S. Farrar



saudi-billionaire-s-company-will-invest-2-5-billion-in-ethiopia-rice-farm.html>, accessed 12November 2013.

Borras, S., and J. Franco, From Threat to Opportunity? Problems with the Idea of a “Code ofConduct” 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 andInvestment Opportunities Pertaining to Development (Dakar: UNIDEP, BADEA, 2009).

Citadel Capital website, available at: <http://citadelcapital.com/about/who-we-are/>, accessed13 November 2013.

Clay, E.J., M. Geddes, and L. Natali, Untying Aid: Is It Working? An Evaluation of theImplementation of the Paris Declaration and of the 2001 DAC Recommendation of UntyingODA 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 inFarmland: Can It Yield Sustainable and Equitable Benefits? World Bank Report (World Bank,2011), available at: https://openknowledge.worldbank.org/handle/10986/2263 Licence: CCBY 3.0/GO.

Desplat, P., and T. Ostebo (eds.), Muslim Ethiopia: The Christian Legacy, Identity Politics andIslamic Reformism (Basingstoke: Palgrave McMillan, 2013).

Erlich, H., Saudi Arabia and Ethiopia: Islam, Christianity and Politics Entwined (Boulder: LynneRienner, 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: <http://www.fao.org/fileadmin/user_upload/newsroom/docs/VGsennglish.pdf>, accessed 12 November2013.

Furnish, T.R., Sufis v. Salafis: Winning Friends and Interdicting Enemies in Islamic Africa, 1 RIMAPolicy Papers, no. 1 (2013), available at: <http://muslimsinafrica.wordpress.com/2013/04/11/sufis-v-salafis-winning-friends-and-interdicting-enemies-in-islamic-africa-dr-timothy-r-furnish/>, accessed 12 November 2013.

Gall, T.L., and J. Hobby (eds.), “Afar”, in Worldmark Encyclopedia of Cultures and Daily Life (2nded., Vol. 1, Detroit: Gale, 2009).

German, L., and G. Schonenveld, Contemporary Processes of Large-Scale Land Acquisitions inSub-Saharan Africa: Legal Deficiency or Elite Capture of the Rule of Law?, 48 WorldDevelopment (2013).

GRAIN, World Bank Report on Land Grabbing: Beyond the Smoke and Mirrors, available at:<http://farmlandgrab.org/15542>, accessed 12 November 2013.

Guardian, World Bank Told to Investigate Links to Ethiopia “Villagisation” Project (19 March2013), available at: <http://www.theguardian.com/global-development/2013/mar/19/world-bank-ethiopia-villagisation-project>, accessed 13 November 2013.

Guardian, Abu Dhabi Develops Food Farms in Sudan (2 July 2008), available at:<http://www.guardian.co.uk/environment/2008/jul/02/food.sudan>, accessed12 November 2013.

Gulf News, Al Ghurair to Seal 99-Year Farmland Lease in Sudan (19 February 2012), available at:<http://gulfnews.com/business/general/al-ghurair-to-seal-99-year-farmland-lease-in-sudan-1.983321>, accessed 12 November 2013.




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 aGlobal 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: <http://www.hrw.org/news/2012/08/28/ethiopia-army-commits-torture-rapes>, 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 SupremeCouncil of Ethiopian Muslims, available at: <http://www.islamicpopulation.com/africa/Ethiopia/Ethiopia_%20Muslims%20had%20lost%20touch%20with%20Muslim%20world%20.html>, 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: <http://www3.sari.irna.ir/en/News/80800522/Politic/Iran,_Sierra_Leone_to_expand_economic,_cultural,_parliamentary_ties>, accessed 12November 2013.

Islamic Development Bank News portal, Ethiopian Prime Minister Holds Talks with Islamic Dev’tBank Group President (Sunday, 17 January 2010), available at: <http://www.isdb.org/irj/portal/anonymous?NavigationTarget¼ navurl://71cd39288bf9ac31b2b312401ca8eea7>,accessed 12 November 2013.

Islamic Finance News, Emirates Capital Mandated to Manage the First-Ever Investment FundInitiated by GPS3 Investments and Dedicated to the Development of the New Nation ofSouth Sudan (18 March 2013), available at: <http://global.factiva.com.ezproxy2.library.usyd.edu.au/ha/default.aspx>, accessed 12 November 2013.

Islamic Finance News, Government of Mauritania and Al-Rajhi Sign MOU to Transform the FoodSecurity Roadmap in the Muslim World and Collaborate on $1bn Investments (11 February2013), available at: <http://global.factiva.com.ezproxy1.library.usyd.edu.au/ha/default.aspx>, accessed 12 November 2013.

Islamic Finance News, Supplements, Africa an Uncertain Future, available at: <http://www.islamicfinancenews.com/2012_IFNsupplement_Africa.asp>, accessed 12 November 2013.

Khaleej Times, Sudanese Expats Cast Votes in the UAE (11 April 2010), available at: <http://www.khaleejtimes.com/DisplayArticle09.asp?xfile=data/theuae/2010/April/theuae_April278.xml&section=theuae>, accessed 12 November 2013.

Kifle, E., “Massive Sale of Ethiopian Farm Lands to Chinese and Arabs”, Ethiopian Review, 3June 2009, available at: <www.ethiopianreview.com/content/9937>, accessed 12November 2013.

Lavers, T., Land Grab’ as Development Strategy? The Political Economy of AgriculturalInvestment in Ethiopia, 39 The Journal of Peasant Studies, no. 1 (2012).

Los Angeles Times, Mauritania Cuts Iran Ties (29 June 1987), available at: <http://articles.latimes.com/1987-06-29/news/mn-228_1_diplomatic-relations>, accessed 12 November2013.

Magharebia, Mauritania, Saudi Arabia Sign Security Accord (5 December 2011), available at:<http://magharebia.com/en_GB/articles/awi/features/2011/12/05/feature-01>, accessed12 November 2013.

272 S. Farrar



Martin, B.G., Arab Migrations to East Africa in Medieval Times, 7 The International Journal ofAfrican 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:<http://www.odi.org.uk/sites/odi.org.uk/files/odi-assets/publications-opinion-files/7809. pdf>, accessed 12 November 2013.

Nottage, L., and V. Bath (eds.), Foreign Investment and Dispute Resolution Law and Practice inAsia (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”, PressRelease, 4 October 2012, available at: <http://www.oxfam.org.uk/media-centre/press-releases/2012/10/land-sold-off-in-last-decade-could-grow- enough-food-to-feed-a-billion-people>, 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 andWorld Bank (Cambridge and New York: CUP, 2010).

Pew Forum on Religion and Public Life, Estimates of the Religious Make-up of 19 Sub-SaharanCountries From Various Sources, in “Islam and Christianity in Sub-Saharan Africa,” avail-able at: <http://www.pewforum.org/uploadedFiles/Topics/Belief_and_Practices/sub-saharan-africa-appendix-b.pdf>, 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 PeasantStudies, 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 March2013), available at: <http://www.southsudannewsagency.com/opinion/articles/more-cases-of-land-grabs-in-south-sudan>, accessed 12 November 2013.

Sudan Tribune, Government Adopts Land Policy in South Sudan (26 February 2013),available at: <http://www.sudantribune.com/spip.php?article45633>, accessed 12November 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: <http://www.fao.org/




fileadmin/templates/est/INTERNATIONAL-TRADE/FDIs/Egy_Mor_Sud.pdf>, accessed 12November 2013.

The National, South Sudan Seeks Big Investments from UAE (22 March 2013), availableat: <http://www.thenational.ae/news/uae-news/politics/south-sudan-seeks-big-investments-from-uae>, accessed 12 November 2013.

Transcend Media Service, Fentaw, A. “Are the Islamists Coming?” (28 May 2012), available at:<https://www.transcend.org/tms/2012/05/ethiopia-are-the-islamists-coming/>, accessed12 November 2013.

UNCTAD, Global Trends Monitor, No 8 (24 January 2012), available at: <http://unctad.org/en/Docs/webdiaeia2012d1_en.pdf>, accessed 12 November 2013.

United Nations, Sustainable Development Knowledge Platform, available at: <http://sustainabledevelopment.un.org/partnerships.html>, accessed 9 November 2013.

UPI Business News, FAO: Africa Land Grabs Like “Wild West” (11 February 2012), available at:<www.upi.com/Business_News/Energy-Resources>, accessed 12 November 2013.

Woertz, E., Oil for Food: The Global Food Crisis and the Middle East (Oxford: OUP, 2013).

274 S. Farrar



Article

Emel Zerrouk* and Andreas Neef

The Media Discourse of Land Grabbing andResistance During Myanmar’s LegalReformation: The Monywa Copper Mine

Abstract: This study is conducted using a legal and an in-text media studyapproach in order to deconstruct the discourse of land grabbing around theMonywa Copper Mine. Its aim is to analyze the discourse surrounding theresistance to expansion and to shed light on the current trends and any newopportunities that may exist in reforming Myanmar. To this end, we explore thelimits of local resistance and draw lessons that can be applied to the increasingcases of land grabbing around the country. The expansion of the Monywacopper mine, the nation’s largest, located on the Letpadaung mountain range,north of Naypidaw, Myanmar, affects some 26 villages in the area and createsfurther concerns over land grabbing. Mining operations in the area have beengrowing since the 1980s, the project being the result of a joint investment by thegovernment and international extraction companies. Similar projects on otherranges nearby have left the surrounding areas polluted and unproductive. SinceJuly 2012, the local communities surrounding the Monywa copper mines havebeen protesting the rush of recent land grabbing, “insufficient” compensationand the environmental damage related to the project. Their resistance gainedconsiderable momentum, peaking in November 2012 and escalating in clasheswith local authorities, but diminishing with the launching of an investigativecommittee, a benchmark achievement. Against the backdrop of Myanmar’s legalreformation, these activities are both shaping and being shaped by the shiftingpolitical, 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, KyotoUniversity, Kyoto, Japan, E-mail: [email protected] Neef, University of Auckland, Auckland, New Zealand, E-mail: [email protected]




1 Introduction

Conflict over land, and the right to use it, is as old as community. Yet in recentyears, in the face of the global financial crisis and growing food and energysecurity concerns, global attention to land conflicts triggered by “land grabbing”has increased. Land grabbing stresses the in-equitability of land tenure changethat occurs within a nation, but in conjunction with national, regional andinternational actors. In Myanmar, a growing number of these cases have beenrecorded. One notable and evidently news-worthy example is that of theLetpadaung copper mine1 expansion project, which has been behind a seriesof land grabs that have led to nationwide protests. In a nation where around athird of the population lives below the poverty line,2 and 70% are dependent onthe agricultural sector for their livelihoods, issues of land and the right to it areessential.

This paper explores discourses surrounding the copper mine expansionproject’s land grabs and related protests as produced by the national andinternational media.3 In other words, it analyzes how media has chosen togive weight to certain themes related to this case of land grabbing over timeand then contextualizes the results within the changing legal landscape of thecountry. The subject of the research is the “discourse” enveloping theLetpadaung 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 onthe media discourse as a whole is needed to capture the complexity of the defacto situation and to appreciate the dynamics of the various interplayingthemes picked up by media. It is also due, in part, to the realization that thereare many actors contributing to this situation who may not consider it a case ofland grabbing. Although the catalyst behind this issue is land grabbing, otherthemes have come to dominate media discourse as the reporting of the caseincreased. For example, the perceived spread of negative environmentalimpacts, expanding onto the grabbed lands, and within its previous boundaries,is the second most consistently reported narrative by volume, and the mostconsistent 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: <https://www.cia.gov/library/publications/the-world-factbook/geos/bm.html>, accessed 28 April 2013.3 “Media” here signifies newspapers made available in English language for the sake ofconsistency between news broadcasters, both national and international, and in that must beavailable in online format.

276 E. Zerrouk and A. Neef LDR



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

2 Methodology

The media examination in this paper was conducted using a systematic quali-tative data analysis approach, with elements of media theory and semanticsused to deconstruct the discourse. In order to identify a trend in media discoursesurrounding this case of land grabbing, the main themes addressed in 177articles, from the pre-September 2012 period (when coverage began), until 22March 2013, were coded and their density recorded. The major themes identifiedas being significantly developing over time in the articles were: the issues ofland grabbing itself, compensation, (negative) environmental impact, protest asan expression of public freedom, the violent protest camp raid of 29 November2012, and the injured monks caught in the raid (Figure 1).

In order for an article to be “tagged” with one of the codes presented inFigure 1, it needed to be entirely dedicated to the theme or contain a sectiondealing with the theme explicitly. For example, in the case of the “LandGrabbing” theme, a detailed reference to the land grabbing/confiscation/sei-zure4 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 “landconfiscation” and “land seizure”.

LDR The Monywa Copper Mine 277



Specifically to those lands whose “re-appropriation”5 is contested by their priortenants. Simply containing the term in a sentence that lists the various issuessurrounding the Monywa mine controversy was deemed insufficient.

While some themes are interconnected, they may also work in parallel. Thereported concern of locals over compensation, with a specific focus on the lackof/or need for further compensation for re-appropriated land, has been causedby both land grabbing and fears of spreading negative environmental impact.However, the “theme” of compensation is sometimes set-aside by media asnewsworthy in and of itself, e.g. a piece on the general lack of financial equit-ability identified where an agreement was signed/agreed to and a re-evaluationwas being called for. Thus it cannot always be conflated with either of the “landgrabbing” or “environmental impact” themes and is isolated as a separate, yetconnected theme. Similarly, the theme of “environmental impact” stands aloneeven as it is connected to both concerns for related compensation and landgrabbing. Essentially this theme covers the negative environmental impacts thatthe expansion project will purportedly affect and what may be needed to

Figure 1: Main themes and relationships expressed over time

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 thenew Land Law of 2012, if the project is deemed in the best interest of the State, i.e. as a Stateproject, 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 InvestigationCommittee suggests that all land be compensated according to current market values, but theapplication of the findings by the implementation committee has chosen a different standard tofollow.




mitigate them. Thus an article may be coded with this theme whether itsdescription of environmental impact is linked to the land grab theme or as aseparate 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 withnational protest. The theme of “protest” became so popular that coding it as atheme on equal footing with the others was not productive, as it was mentionedwith 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 protestexperience that caused large shifts in the discourse arose at the end ofNovember 2012. The “violent protest camp raid” (crackdown/raid) theme grewout of the 29 November pre-dawn raid of the then remaining six protest camps inthe Letpadaung area by riot police. Connected to this is the theme of the “injuredmonks.” Articles focused on the injuries sustained by monks who had partici-pated 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 protestsand drew national and international media attention to the Monywa case. It isnot surprising then that these two themes dominated the discourse surroundingthe Letpadaung land grab case for subsequent months, overshadowing previousthemes.

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 internationalmedia. This spread was chosen to circumvent the bias that may exist withinan individual news group and to capture the breadth as well as the depth ofreporting. Three news sources per category were selected, with an attempt tounify within each group the political/social stances of each, the intendedaudience.

Table 1: News sources by group for the period of pre-September 2012–22 March 2013, numberof articles in brackets

MB: Myanmar-Based(55)

CG: Chinese Gov.Backed (27)

FBL: Foreign-based LocalNews (62)

International:(19)

The New Light ofMyanmar (17)

Global Times (4) The Irrawaddy (47) Al Jazeera (4)

The Myanmar Times(18)

China Securities (3) Mizzima (15) BBC (11)

Eleven News (20) Xinhua (20) DVB: Democratic Voice ofBurma (26)

The New YorkTimes (4)




The volume of sources treating this subject by group is indicative of the “dis-tance” each source group has from the subject. The MB and FBL sources (55 and62 articles respectively) are from newspapers that focused specifically onMyanmar related news, while the CG and international news sources are not(Figure 2). Historically each of the three MB news sources has had to passthrough government monitoring/censorship before release. However, new legis-lation was passed in 2012 to begin the easing of censorship and governmentcontrol. Reporters without borders ranked Myanmar 151, out of 179 countries atthe beginning of 2013, which is a move up of 18 places since 2012 and its highestever.6 The New Light of Myanmar is the country’s oldest and only Englishlanguage daily, established in 1993, and – previously reputed as being a vehiclefor Junta propaganda – it is reportedly taking advantage of the reforms to re-define itself as an open state-run newspaper.7 The other two MB newspapers,Eleven and The Myanmar Times are weeklies with slightly different histories, butboth must still pass the rigours of the state media machine. The Myanmar Timeswas co-founded in 2000 by an Australian and Burmese investor making it theonly news source in Myanmar to hold foreign investment.8 Mizzima, like DVBand Irrawaddy are based outside of Myanmar, in India, Norway and Thailand

55

62

1912

28

2910 11

2

1521

5

12

29

411

0

10

20

30

40

50

60

70

MB Media FBL Media CG Media International Media

Nu

mb

er o

f A

rtic

les Total Articles

Land Grab

Compensation

Environment

Crackdown/Raid

Injured Monks

27

6 6

Figure 2: Number of articles by media source available

6 Reporters Without Borders, Press Freedom Index 2013, available at: <http://fr.rsf.org/IMG/pdf/classement_2013_gb-bd.pdf>, accessed 1 May 2013.7 Reuters, “In Reforming Myanmar, a Junta Mouthpiece Gates a Makeover”, available at:<http://in.reuters.com/article/2012/10/17/myanmar-newlight-media-freedom-idINDEE89G0GJ20121017>, accessed 28 April 2013.8 Centre for Independent Reporting, “Burma: Co-Founder of Myanmar Times on Trial”, avail-able at: <http://cijmalaysia.org/2005/02/08/burma-co-founder-of-myanmar-times-on-trial/>,accessed 26 April 2013.




respectively and are outside of the censorship of MB sources. However, one FBLnews source, Mizzima, founded by Burmese expatriates, is to become anaccepted privately owned MB media source under the reforms.9

The Monywa Copper Mine is jointly funded by China, thus the protestsconcerning the mine have a direct impact on their interests. Bringing Chinesemedia discourse into the study shifts the frame and adds a further dimensionthat, 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 thussetting it up as a counterpoise to FBL and international media sources. Asinternational media covers a wider area and a broader readership, it showsthe “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 thiscase of land grabbing has gained support and why it has had some demandsmet, e.g. for further compensation, has been due to its systematic and well-rounded media coverage, both in the local and in the international spheres.Perception being a fickle friend in politics, media can play a key role ininfluencing actions taken by governments seeking to impress. However, whilelocals and protesters use media to their advantage, and vice versa, it is neces-sary to properly contextualize the themes that both players push or else readersof such media-created discourse risk falling into the trap of misinformationcirculated for the sake of forming opinions, a dangerous use of rhetoric.12 Inan effort to avoid that eventuality, this paper aims to outline how the discoursedeveloped and evolved in parallel with the country’s political, social, environ-mental and legal regime context.

9 Reporters without Borders, Retrograde Bill Threatens Tentative Progress, available at: <http://en.rsf.org/burma-retrograde-bill-threatens-07-03-2013,44176.html>, accessed 28 April 2013.10 According to Reporters without Borders China ranks below Myanmar in freedom of thepress, 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’shistorical relationship with Myanmar and the BBC’s recent coverage of Aung San Suu Kyi’smovements to and from England and elsewhere.12 Aristotle defines rhetoric as the available means of persuasion, for others it is often theantithesis of truth, for some it is merely clever literary devises and language. Becky McLaughlinand Bob Coleman (eds.), Everyday Theory a Contemporary Reader (New York: Pearson Longman,2005), p. 806.




3 Monywa copper mine history andgeneral facts

In 1922, a British geological team identified the presence of what seemed to becopper in the river beds of the lower Chindwin River.13 At the time they had beenclose to discovering the Monywa site, one of the world’s top ten copper deposits.The Monywa copper mine property consists of three mountain ranges: theSabetaung, which includes Sabetaung North and South, Kyisintaung andLetpadaung deposits and their surrounding areas. The site conceals a site withcopper concentrations great enough to make it one of the last sites where openpit mining is still profitable. Copper being an essential element to the industrialworld, the Monywa Copper mine project is certainly a significant project.Situated in Myanmar’s northern Sagaing Division, the mountains, which liewithin Salingyi Township, are located 15 miles from Monywa City. Their shadowreaches 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 extrac-tion has a long history. Between 1985 and 1997 an earlier mining project,developed by Mining Enterprise No. 1, a State-owned company, and RTB BorCopper Institute, a Yugoslavian state-run company, extracted copper usingfloatation-concentration processes.14 However, due to financial concerns, andaugmented by the instability of its domestic situation, RTB Bor pulled out ofthe site.

At the beginning of 1992, Ivanhoe Myanmar Holdings, Ltd., a subsidiary ofthe Canadian Ivanhoe15 company started talks with Myanmar’s governmentowned Mining Enterprise No. 1, to develop facilities for the recovery of copperfrom the Monywa mountain deposits using a heap-leach solvent extraction–electrowinning (SX-EW) process.16 SX-EW is a process that, in theory, has lessnegative environmental impacts than the previous concentration-floatation tech-nique as it requires fewer processes and can be conducted in situ (more on thisdiscussed further in relation to the environmental impacts of the project, as highpyrite contents in the ore have led to the need for higher acidity of solvents usedwhich 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: <http://www.ivanhoe-mines.com/i/pdf/monywa-fact-file.pdf>, accessed 22 March 2013.15 Ivanhoe has since been renamed Turquoise Hill Resources.16 Ivanhoe Mines Ltd, supra note 15.




the “Sabetaung, Sabetaung South, Kyisintaung and Letpadaung”17 mountainsnear Monywa City.

The joint venture with a 50/50 interest between Mining Enterprise No. 1 andBagan Copper Holdings Ltd. (Ivanhoe Myanmar Holdings, Ltd Burmese subsidi-ary) created the Myanmar Ivanhoe Copper Company Limited (MICCL) in April1996.18 The venture was to begin work immediately on three open pit miningoperations, with a 20-year lease per site, on the Sabetaung, Sabetaung South,Kyisintaung deposits, with future plans to include the Letpadaung area 7 kmaway. The project was designed to produce 25,000 tpy of cathode copper byheap-leach solvent extraction electrowinning technology, but was boosted to39,000 tpy by 2004.19 From its inception it was the intent of the MICCL, toexpand to the Letpadaung deposits as part of its “phase 2.” This phase wasprojected 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 qualityof the ore. Additionally, it was estimated by Ivanhoe Mines, in 2007, that“approximately 6,500 children, women and men in the Monywa region currentlydepend 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 setto produce over 1,000 additional jobs.22

However, issues concerning the payment of dividends and the financialinsecurity of the project led Ivanhoe Mines to a slow withdrawal from theproject.23 Since 2004 Ivanhoe mines had been looking to minimize its shareof 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, March28, 2008, available at: <http://www.turquoisehill.com/i/pdf/2008AIF.pdf. 22 March 2013> andIvanhoe 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 Letpadaungdeposit.21 Ivanhoe Mines Ltd, supra note 15.22 The types of jobs are a key question when examining the import of these figures. “MonywaCopper mines Fact File”, Ivanhoe Mines Ltd, supra note 15.23 Ivanhoe Press Release: “Ivanhoe Mines has not recovered the more than $100 million it hasinvested in the development and operation of the Monywa Copper Project and has not made aprofit on the investment. MICCL, the Myanmar joint venture company that owns and operatesthe Monywa Copper Project, has not made regular dividend payments to its joint-ventureshareholders during the almost nine years of mine operations.”




consortium of South Korean companies was planning to buy half of Ivanhoe’s50% stake in MICCL … [which] would reduce Ivanhoe’s interest in theMonywa project to 25%”.24 This did not come to fruition, and on 18 October2006 Ivanhoe Mines announced that they were moving to divest themselvesentirely 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”. “TrustHoldco,” a company created for the purpose of holding and selling theseAssets, then issued a promissory note to Ivanhoe entitling them to theproceeds of the sale of the Monywa Copper Project. Production continuedin the interim phases (2007–2011), but was halted in late 2008 until mid-2009, when the financial crisis caused copper prices to downturn.26

On 24 June 2010, The Irrawaddy reported that “China North IndustriesCorporation (CNIC) announced [on its website] that it signed [on June 10th]the Monywa Copper Mine Project Cooperation Contract with Burmese militaryofficials 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 beenfinalized:

Brig-Gen Zarni Win of the Union of Myanmar Economic Holdings Ltd and Executive DeputyGeneral Manager Mr Yin Jiaxu of NORINCO (G) on Production Sharing Contract forSabetaung, 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 tooutline the recent changes to Myanmar’s Land Laws. Under the 2008Constitution of the Union of Myanmar, the Union “is the ultimate owner of alllands and all natural resources above and below the ground, above and beneaththe 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: <http://www2.irrawaddy.org/article.php?art_id=18798>, accessed 22 March 2013.28 New Light of Myanmar, 5 April 2011, available at: <http://www.burmalibrary.org/docs11/NLM2011-04-05.pdf>, accessed 22 March 2013.




population living in rural areas,29 and 30–40%30 of those employed working theland of others, land, and especially farmland rights are a contentious andcomplex issue which are often embroiled in ethnic politics.31 On 30 March2012, the government brought into force two new land laws, and on 31 August2012, their respective rules32: The Farmland Law; The Farmland Rules, TheVacant, Fallow and Virgin Lands Management Law; and The Vacant, Fallowand Virgin Lands Management Rules. The Farmland Law (and Rules) replacedthese 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 Law1954 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), itis the base of the nation’s land laws. Private property is allowed under theconstitution (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 whenon the land attributed to them.33 A positive element of the new Land Law is theencoding of a farmers “transfer rights,”34 which allows for the leasing and saleof the land that they are registered on. While the law is progressive in someaspects, e.g. in outlying the institutions responsible at different levels for orga-nizing, registering and managing rights to land, it also makes a farmer’s right towork land potentially more tenuous than before. The Farmland Law creates toomany 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 ofproof 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 versusState 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 moreautonomous, e.g. Shan State32 The “Rules” for each Law detail the application of the March 30 Laws and were drafted bythe Ministry of Agriculture and Irrigation, signed by Myint Hlaing the Union Minister of theMinistry. The Farmland Law and the VFV Law were passed by the Parliament, the PyidaunsuHluttaw, and signed by President Thein Sein.33 Farmers must submit a request to the local Land and Settlement Authority in order tochange their cropping.34 FAO, What Is Land Tenure, available at: <http://www.fao.org/docrep/005/Y4307E/y4307e05.htm>, accessed 28 April 2013.




use under the initial agreement made, falls upon the farmer. If the local officialis not fully satisfied with their proof the right to use the land may be taken and afine levied. This is the case for all “new” farmland granted under the VFV Lawand for all farmland currently in use (as re-registration is necessary). The timeperiod of use is also limited to the lifespan of the crops/project to be developedon the land and continued use of the land is conditional on being able tomaintain the work on it (The Farm Land Law, Art 9(d)). If they are unable towork it after the previous project/cultivation period is finished,35 or if they wishto change crop – which requires permission, they risk having their land deemed“vacant” and seized (The Farm Land Law, Art 8). Additionally, the governmentmay choose to confiscate any land that it deems necessary for the sake of aproject 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 monywacopper mine: mechanism, compensation andenvironmental impact

5.1 Mechanism of the land grab

During the week of 7 March 2013, an investigation committee, the parliamentaryFarmland Investigation Commission, completed and submitted to the parliamenttheir 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 theprevious regime37 (cf. Figure 3). In their report, the commission wrote that theyhad 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 alsobe noted that any new land tenure rights given under the VFV Law are based on ability to useland 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 fromParliamentary Committee, 12 March 2013, available at: <http://www.burmapartnership.org/2013/03/rampant-land-confiscation-requires-further-attention-and-action-from-parliamentary-com-mittee/>, accessed 22 March 2013.




seized farmlands that are away from its bases, and they are also thinking aboutproviding farmers with compensation” [authors’ emphasis]. However, the reportmakes no mention of the Letpadaung copper mine issue as the confiscationswere not conducted directly by the military, but by the joint company consistingof Wanbao Ltd and Union of Myanmar Economic Holdings Ltd (UMEH), apredominantly military owned company.38

Under the 1994Myanmar Mines Law, currently under revision, a committee is tobe set up for each “Mineral Reserve Area,” that is responsible for investigating theeffect 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 [MyanmarMines Law 1994, Ch 7, Art 21(c)]. This establishment of an equitable situation from theoutset is the responsibility of theMinistry of Mines, and therefore of the government.This said, for the sake of the Monywa copper mine expansion project, approximately7,800–8,000 acres (3,157–3,237 hectares) of land from 26 villages around theLetpadaung Mountain, the site of the new mine, was confiscated by the project,and done in a manner that was evidently inequitable (as confirmed by theInvestigation Committee). The land grabbed by the project belongs39 to the peopleof Salingyi’s Hse Te, Zee Daw, Wet Hmay and Kan Taw villages.40

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

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: <http://www.irrawaddy.org/archives/12207> accessed 22 March 2013.




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

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

The issue of compensation was, and continues to be, at the heart of theLetpadaung land grab case. Little or no compensation was given to the farmersand members of the 26 villages affected by the project. Reporting on this themeremained low throughout, however (Figure 4). Buoyed by the new protest law,and the hope that regime change brought, the effected peoples decided to voicetheir complaints, directing most of them against the Mining Company itself. Thereality of the legal situation is not as it has been presented, or understood, bythe media however. When the previous government signed the deal withWanbao and UMEHL for the Monywa copper mines, they had not apparentlyoutlined 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 UMHELwas given a 60-year grant to work on the land, although work had alreadystarted on the mountain itself and dumping was already occurring on itssurrounding lands. At this point, the government had decided on a land usechange that overlapped with the farmlands of the 26 villages. This meant thatthe lands were being “repossessed” in favour of a project “beneficial to the Stateand public.” It was the responsibility of the State at that point to inform thevillagers of the change and to compensate them for the loss accordingly. Whenthe new regime came to power, they inherited, according to international law,

41 Jincui Yu, “Wooing Old Customers Anew”, Global Times, 27 November 2012, available at:<http://www.globaltimes.cn/content/746784.shtml. 22 March 2013>, accessed 22 March 2013.

0%

20%

40%

60%

80%

100%

BeforeSept2012

Sep-12 Before29 Nov

From 29Nov

Per

cen

tag

e o

f A

rtic

les

Rep

ort

ing

Th

emes

Land Grab

Compensation

Environment

Crackdown/Raid

Injured Monks

Linear (Land Grab)

Linear(Environment)

Oct-12 Dec-12 Jan-13 Feb-13 Mar-13

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




the responsibility for the agreements made by the previous regime. Thus they arenow the responsible “land lord” of the leased/confiscated land. Under TheFarmland Law stipulates [chapter 4, art. 26, 27] that compensation must begiven for farmland taken in these cases, such that there is no “loss”. Thus, theState owes reparations to those whose land was taken.

The rules are different for the land affected by the project beyond the agreedarea outlined in the Monywa Copper Mine Company/Government contract.Under the Myanmar Mines Law of 1994, a project that wishes to expand beyondthe Mineral Reserve Area, must negotiate, and have agreements, with those whohave 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, Ch4, Art 14]. In this area, the villagers are still the holders of the land rights. Theindividual farmland rights holders are permitted by law to lease and sell theirland rights, except to foreign companies or individuals.43 So if the company, asthe mining permit holder, wants to lease the use of their lands to build atemporary through road, they would be expected to form an agreement withthe locals in each case. Inversely, this means that all lands that the companywas required to negotiate for were located outside of the original project zone,the rights to which were privately owned. However, the terms for accepting thecompensation that was offered in these deals were non-transparent. In early2011, 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 worththe loss of their crops44 due to the construction process of the site, i.e. the needfor more through roads and the setting-up of power lines, etc. However, it hadapparently not been made clear that this compensation was intended by theMonywa copper mine company as payment for the “sale” of the land rights ofthe farmers, who presumed that they could have the land back to use after 3years. In February 2013, after research into this issue, Aung Thein a member ofthe Myanmar Lawyers Network Myanmar claimed that officials used illegaltactics to get the villagers to sign these contracts. He discovered that “coercionand 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 toensure 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 betweenthe two parties.43 Unless permitted by the new investment law’s provisions.44 See supra note 44.




Burmese law these contracts are invalid and can be rescinded by the villa-gers”.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 tenantonce the “state project” has been completed.46

According to several LNG news sources, the Implementation Committeecharged with the follow-up of the Letpadaung Investigation Committee report47

which was released in March 2013, with government support pledged that nearlyfive 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 TheIrrawaddy, the source with the most consistent reporting of this case of landgrabbing, wrote that a total of around 224 million kyat ($259,000)50 hasbeen given out by the government to 69 farmers presumably for the reparationsowed 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 scenar-ios, the State-confiscated and liable land, or the company-confiscated and liableland, however, is up to the government and the report implementation committee.There are also concerns the loss of the lands to be confiscated could underminethe livelihood security of the farmers, and thus that restitution need also includearable land near the new villages, given or made available for purchase. At ameeting with the residents of Sete village, Thaung Sein, Saigaing Region’sParliamentarian said that villagers located in Tonywa, Sete, and Wethmeywill receive new land.52 However, some declined and agreed in favour of returning

45 Roughneen Simon, “Fraud, Excessive Force Used at Letpadaung Mine: Report”, TheIrrawaddy, 14 February 2013, available at: <http://www.irrawaddy.org/archives/26765>,accessed 22 March 2013.46 Chapter 6, art. 32: “If projects are terminated, farms are to be given back to originallegitimate 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: <http://www.elevenmyanmar.com/national/2833-farmers-receive-compensation-for-land-grabbed-for-copper-mine. March 22 2013>, accessed 22 March 2013.49 According to Myint Aung of the military owned Union of Myanmar Economic HoldingsLimited.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, 19March 2013, available at: <http://www.irrawaddy.org/archives/29783>, accessed 22 March 2013.52 According to the Democratic Voice of Myanmar, one of the few news sources that werepresent at this meeting: Aye Ni, Protestors close rally sites near Latpadaung mine, DemocraticVoice of Burma DVB, 18 March 2013, available at: <http://www.dvb.no/news/protestors-close-rally-sites-near-latpadaung-mine/27045. March 22 2013>, accessed 22 March 2013.




to farm their old lands in April, after the previously agreed upon 3-year contractfor compensation had expired.53 This will not be possible for many, due to thepreviously mentioned reality of the legal situation that the villagers find them-selves a victim of.

Some farmers from the closest villages began accepting compensation inApril 2013, as their fields were already polluted by waste dumped from thecopper mine project, making farming the land impossible. According to theKyemon, another State-owned newspaper, “69 landowners accepted paymentsranging from 700,000 to 1.5 million kyat (US$810–1,735) per acre, depending ofthe quality of their farmland”.54 This was considered an improvement on theslightly 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 rightto 0.6 acres of land was concluded at 8 million kyat ($9,250), which equates tomore than nine times the highest compensation offered by the government todate.56 Not surprisingly, those that have been among the first to accept com-pensation 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 ConservationLaw,57 legislation that has taken a decade to produce, but was immediatelycalled for under the 2008 Constitution.58 The law was created to implement TheNational 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 ofcultivated 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] naturalenvironment,” 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 andComparative Law, no. 1 (1997), 609–614, available at: <http://law.nus.edu.sg/sybil/down-loads/articles/SJICL-1997-2/SJICL-1997-609.pdf>, accessed 10 July 2013.




aimed to find a balance between the people and their cultural heritage, thecountries’ natural resources and the environment. The new Law also followsafter the release of the 2009 “National Sustainable Development Strategy forMyanmar”60 that was a joint effort between the National Commission forEnvironmental Affairs and Minister for Forestry (NCEA)61 and UN organizationsand followed the same principle of the need to establish a balance between thedifferent elements that make-up the country.

Essentially The Environmental Conservation Law attempts to change anenvironmental system that was previously sectoral even with the NCEA, byextending the role of the Ministry of Forestry as the new Ministry ofEnvironmental Conservation and Forestry (MOECAF), and creating a newEnvironmental Conservation Committee that oversees all environmental activ-ities in the country.62 The law encodes basic principles such as intergenerationalequity, sustainable development and the polluter pays principles but does notgo very far in elaborating what these elements entail in practice or how they willbe enforced. The Environmental Conservation Committee is tasked with educat-ing their citizens and cooperating with foreign governments and organizationsfor access to funding and technologies that could aid in their conservationefforts and are expected to monitor the activities of various sectors of thegovernment in their implementation of the law. The MOECAF is involved inthe writing of quality standards and the expansion of the principles of the law,its application, enforcement, the arbitration of disputes, and the identification ofthose who violate the law. This law is still in its infancy and the efficacy of theMOECAF and the Environmental Conservation Committee not yet apparent.However, there are still concerns among critics about the monitoring of theactivities of these two agencies and the possible misuse of Art. 36 which allowsthe MOECAF, with Government approval, to “exempt of relieve any Governmentdepartment, organization or private business from complying with the provi-sions contained in this Law for the interest of the Union and its people”.63 Thisarticle may be interpreted as excusing potentially environmentally unfriendly

60 Ministry of Forestry, National Sustainable Development Policy For Myanmar (2009), availableat: 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 monitoringbody in the face of economic and industrial development, and were responsible for the draftingof Myanmar’s Agenda 21. UNESCAP, Integrating Environmental Considerations into EconomicPolicy Making Processes in Myanmar, ESCAP Virtual Library, available at: <http://www.unescap.org/drpad/vc/conference/bg_mm_124_iec.htm>, accessed March 2013.62 Government of the Republic of the Union of Myanmar (2012), supra note 61, Art 4.63 Ibid, Art 36.




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 tothe public concerning the environmental impact of the expansion project. Yetalmost all news groups talked of environmental concerns as one of the mainreasons for protest. Thomas Fuller, in The New York Times, went as far as tostate that environmental concerns are “[a]t the heart of the case” and that “landseizures” are the broader issue.64 While data were not available, the history ofthe area and their experience with other mines on their mountains has made thelocal people wary. An increase in local air pollution was evident at the time, anddumping on the lands next to farmland was creating pollution scares among thevillagers. Whether a “real” imminent threat or not, the environmental concernplatform has been successful in gaining attention and support to the protestersof the mine and its subsequent land grabs. The suspected widespread environ-mental damage that the project is creating, or expected to create, has beenalmost 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 August2012, from villages further afield. When those living under the LetpadaungMountain reminded others of “the decimation of nearby [Sabetaung South,Kyisintaung] mountains due to similar projects in the past,”65 the literaturesurrounding the issue containing elements of nostalgia. Suddenly, the concernwas in protecting the natural and physical heritage of the land that they knew.LNG sources reported locals’ concerns over the loss of their mountains. TheIrrawaddy reported on their altruistic desire to preserve their landscape forfuture 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 YorkTimes, 26 September 2012, available at: <http://www.nytimes.com/2012/09/27/world/asia/27iht-myanmar27.html?pagewanted=all&_r=0>, accessed 22 March 2013.65 Zarni Mann, “Letpadaung Mine Protesters Scale New Heights”, The Irrawaddy, 26 October2012, available at: <http://www.irrawaddy.org/archives/17430>, 22 March 2013.66 Nyein Nyein, “Copper Mine Protest Earns Nationwide Support”, The Irrawaddy, 13September 2012, available at: <http://www.irrawaddy.org/archives/13913>, accessed 22 March2013.




It was this environmental heritage agenda that pushed demands for thecomplete closure of the project. At the start of the protests, the focus had beenon insufficient compensation and/or the grabbing of their land rights throughnon-transparent agreements. But by the end of August and beginning ofSeptember, protesters were calling for the end of the whole mining project ratherthan just the expansion of the existing activities. “What began as a few dozenfarmers in Sagaing Region demonstrating over land grabs and inadequatecompensation has quickly escalated into a mass uprising against extractiveindustries which decimate the environment featuring students and activistsfrom Rangoon and Mandalay,” reported the Irrawaddy, succinctly, in mid-September 2012.

Beside the damage done to the landscape, i.e. to Letpadaung Mountainitself, there are serious concerns over water quality. Han Win Aung, of thePolitical Prisoners Families Network, a Burmese NGO, reportedly said “somewells in the area are no longer drinkable or usable as the water has a sour andsalty flavour [sic]”.67 Locals situated near the main project site have reportedtheir need to buy bottled water, those who cannot afford it, have no choice butto drink the contaminated water.68 The pollution was blamed on the currentMonywa Copper Mine Company’s activity, although there were no publicreports. Figures 5 and 6 show the extent of the excavation and subsequentenvironmental damage done to the side of the Letpadaung Mountain. Thevillages marked in the images are among the first to be relocated for thesake of the expansion: Kyawkyawa, Kan Taw,69 Wethme.70 While some waterpollution can be attributed to the small scale “subsistence mining” [MinesLaw, Art. 2 (m)], carried out by locals in the tailings ponds of previousprojects, there is strong evidence that this expansion site poses a seriousfurther threat to the local water table. This is due to the mining methods tobe used as the project is currently going through the development phase and isnot at the extraction/beneficiation/refining phase yet. The Letpadaung mine isto use the same method as the other three Monywa sites: heap-leach solventextraction-electrowinning processing. This type of processing combines multi-ple metallurgical processes, requiring fewer steps, and saving energy andreducing 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: <http://www2.irrawaddy.org/article.php?art_id=18798>, accessed 22 March 2013.68 Ibid.69 This village has been entirely relocated.70 Wet Hmay/Wat Hmae/Wat Hmay/Wethme – alternative spellings.




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

Figure 5: 11 May 2012

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




in some cases less than 1.0”.71 In another article by the same group, from2008, they explained that “most heap bioleaching operations treating low-grade ore operate with a solution pH between 1.5 and 2.5”. However, theLetpadaung site has very high-grade ore, but a high amount of certainspoil72 metals like pyrite mean that such low pH solvents may be necessary.But this will only increase the concerns of locals and their convictions thattheir water table is threatened.

The MICCL used to have bi-annual visits from Societé Générale deSurveillance SA (SGS SA), the reports from which were made public, but hassince changed to the Singaporean SGS group from inspections conducted every 3months.73 According to U Myint Aung, a project official, the Monywa sites havethe international standards of ISO 14001,74 ISO 900175 and OHSAS76 18001 since2003.77 Even so, many blame the current situation on a lack of a thoroughEnvironmental Impact Assessment (EIA) and Social Impact Assessment (SIA).However, national legislation concerning EIAs and SIAs is forthcoming as aprovision78 of The Environmental Conservation Law.79

The mining project also sits along tributaries to the Chindwin River, and lessthan 5 km from the river itself, one of the country’s main rivers, that runs intothe Irrawaddy River. Thus the far reach of these water and air pollution issuesand the concern for the preservation of the landscape in general drew thesupport from near and abroad. The environmental narrative regionalizedthe issue in the same way that the land grab and the crackdown narrativenationalized it.

71 Thomas Maung Shwe, “Ivanhoe Mines Receives $103 Million from Monywa Mine Sale”,Mizzima, 5 August 2011, available at: <http://www.mizzima.com/business/5729-ivanhoe-mines-receives-103-million-from-monywa-mine-sale.html>, 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 moreinclusive version, while ISO 14063 is also recommended as it outlines the need to communicatewith 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”, ChinaSecurities Journal, 16 October 2012, available at: <http://www.cs.com.cn/english/opinion/201210/t20121016_3625537.html>, 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: <http://www.aecen.org/sites/default/files/draft_eia_rules.pdf>.




6 Forms of resistance and counter-resistanceunder a new legal regime

6.1 The old and the “new old” of civil rights: peacefulassembly and procession80

Under the former rule of the Tatmadaw,81 there was little space for peacefulassembly and/or procession. The State Law and Order Restoration Council(SLORC),82 suspended the constitution of 1974,83 and from 2 October 1992 hadbeen contriving to produce another document, The National Convention, bycreating a National Convention Convening Commission. The process of draft-ing a new constitution was highly contentious, with SLORC (and latter SPDC)having complete control of the proceedings. Exiled groups, like the NationalCouncil of the Union of Burma (NCUB),84 and opposition parties such as theNational League for Democracy (NLD) made clear their intentions to unilat-erally draft their own version of the country’s future constitution when it wasevident that they were not to be included in the National ConventionConvening Commission.85 These announcements and continued protestsfrom the populace in the face of the creation of a constitution that wasnon-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 PoliticalRights, or The International Covenant on Economic, Social and Cultural Rights. UN TreatyCollection, Status of The International Covenant on Civil and Political Rights, available at<http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lan-g=en>, accessed 9 July 2013; and UN Treaty Collection, Status of The International Covenant onSocial, Economic and Cultural Rights, available at <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en>, 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 andDevelopment Council from then until the regime change of 2011.83 The Constitution of the Socialist Republic of the Union of Burma was suspended 19 September1988, by SLORC order (Act) 1/88. It contained several articles that outlined the right of citizensto free speech, assembly and procession: Art 153, 156–158, 166–167. from: Government of theRepublic 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 Reconciliationin Burma, 7 Legal Issues on Burma Journal (December 2000), available at: <http://www.ibiblio.org/obl/docs/LIOB07-KMW.htm>, accessed 20 June 2013.




Protecting the Peaceful and Systematic Transfer of State Responsibility and theSuccessful Performance of the Function of the National Convention againstDisturbances and Oppositions of 7 June 1996.86 This Act, also known as theanti-subversion law, was one of the main instruments used to curb peacefulassembly and protest in the country. It was written to forestall all activitieswhich SLORC perceived as undermining the workings of the national conven-tion and disrupting their rule through “incitement, delivering speeches, mak-ing oral and written statements” that could be interpreted as acts of“obstruction, disturbance and [in] opposition to the development of thedemocratic and peaceful transfer of power in the state”.87 Thus any form ofpublic protest against the workings of the regime could be considered contralegem and punishable. Indeed, the punishment for a breach in this law mayhave meant a minimum of 5 years imprisonment to up to 20 years with afine88 and penalties extending to those who aided and/or abetted.

In 2008, a new Constitution was accepted after a controversial referen-dum.89 It outlines the new structure of the country that has existed duringthe reform period of 2011–2013. In terms of the right to protest and freelyexpress reservations, article 354 (a) and (b) states that every citizen will havethe right: “(a) to express and publish freely their convictions and opinions;(b) to assemble peacefully without arms and holding procession”.90 Howeverthese 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 theirwording have lead to concerns among human rights groups. However, theelements that the constitution names/aims to protect from the “harmful”influence of an unchecked exercising of the freedom of assembly and proces-sion 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 andSystematic Transfer of State Responsibility and the Successful Performance of the Function ofthe National Convention against Disturbances and Oppositions, 7 June 1996, available at: <http://www.burmalibrary.org/docs15/1996-SLORC_Law1996-05-anti-subversion_Law-en.pdf>,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 theUnion of Myanmar (2008). 29 May 2008. Version 2010.90 Ibid. Art 354(a), (b).91 Ibid.




Interestingly, the wording of the restrictions of these freedoms is similar to thatof other more “developed” Southeast Asian countries, like Singapore. Article 14of the Singapore’s Constitution places similar constraints on the right to freeexpression and protest.96 Singapore goes even further as to say that the activitiesof 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’sright to freedom of expression, assembly and procession, what is more signifi-cant, perhaps, to each individual, is what laws the State passes to determine“how” they “should” exercise their rights, rather than what general ideas theymust not seek to undermine through their activities.

A new public protest law, “The Right to Peaceful Assembly and PeacefulProcession”97 was released in Myanmar on 2 December 2011 and has openeddoors, again recognizing the “in-principle” right of citizens to “legal” protest.Previously, as Kevin Woods of the Transnational Institute remarks, “it was neverpossible … for villagers to speak out … or else they would disappear. Andsuddenly now it’s possible – not of course without intimidation from authorityfigures, but people are not disappearing from raising these issues and it’s havinga kind of domino effect in terms of other villagers”.98 However, the law places

Elements that should not be undermined by exercising the rights to freedom ofexpression, 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

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 self-determination.93 Supra note 83.94 Government of the Republic of the Union of Burma, The Constitution of the Socialist Republicof 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 toPeaceful Assembly and Peaceful Procession Act, 2 December 2011.98 Mizzima, “Land Confiscation Issue Major Concern for Burma’s Rights Groups”, MizzimaNews, 23 October 2012, available at: <http://www.mizzima.com/news/inside-burma/8271-land-confiscation-issue-major-concern-burmas-rights-groups.html. March 22 2013>, accessed 22March 2013.




considerable restrictions on citizens in relation to the exercising of their right topeaceful assembly and protest, by defining what is, and is not, considered as alawful protest or assembly. The definition of what is a “legal” action is ofconcern to human rights watch groups who see it as an infringement ofMyanmar’s citizens’ constitutionally recognized rights.99 This law is a form ofreformed control over these rights that delineates the extent to which a citizenmay exercise their rights. According to the new Public Protest Law, and its By-Laws, “Regulations relating to the Tight to Peaceful Assembly and PeacefulProcession”,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 theCommander of the Township Police Force.101

Those who are leading the protest, as well as any speakers, must includetheir personal details and a biography, in the application forms102 along with adescription of what they are to speak on, what chants and slogans will con-tain,103 and they must not deviate from the versions of these that are permitted.There is significant room for intimidation and blacklisting of protest organizersand leaders considering also that Art 27 of the By-Laws also stipulate they musttake responsibility for all attendees of the sanctioned peaceful protest and/orassembly. Further causes for concern are the punitive actions outlined by thenew laws with regard to those who fail to comply. If a sanctioned action violatesthe laws individuals may receive a maximum of 6 months in prison and/or alarge fine.104 However, in a move to protect the right of citizens to protestwithout interference, there is also a maximum of 2-year prison charge for anyonewho disrupts a “permitted/legal” peaceful protest.105 But the most contentiousarticle of the Protest Law is Art 18 that writes that any individual who conductsan “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 isenshrined: “to assemble peacefully without arms and holding procession” from: Government ofthe 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 andPeaceful Procession Act, 2 December 2011. Art 4; and Government of the Republic of the Union ofMyanmar, 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 andPeaceful Procession, 2 December 2011. Art 4(c).103 Ibid, Art 4(a).104 Ibid, Art 19.105 Ibid, Art 17.




1 year in prison and/or a heavy fine.106 This article can potentially be viewed asunconstitutional in so much as it punishes citizens for exercising their rightswithout seeking further permission. However, the constitution itself stipulatesthat the government has the power to further “refine” these rights. The ProtestLaw itself contains provisions in its last articles that allow the Ministry of HomeAffairs to issue regulations, “necessary announcements, orders, instruments andprocedures,” (when approved by the Union Government), when “implementing”the Laws.107

Additionally, under the new law authorities are obliged to accept the appli-cations to protest unless they feel that doing so would pose a “serious” threat tothe security, harmony, or peace and Public morality of the State (a clause that iswide open to interpretation).108 If this article is upheld then the law may as yetfunction alongside the constitution. However, the Asian Branch of HumanRights Watch reports that villagers around the Letpadaung area claimed tohave “submitted an application 11 times [to the local authorities] but it wasnever approved”.109 This is a new Act and its application is only now beginningto be tested. With applications being reportedly refused and the governmentunused 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 havebeen occurring all around the country since last year is the increase in landgrabs. The Monywa Copper Mine case is just one example of this. Grassrootsprotest organizations have conducted sit-ins, demonstrations, marches, confer-ences and even filed lawsuits against companies, and even President Thein Seinpersonally.110 Information sharing among locals as well as among similarlystressed communities has been a key element in the new wave of protest.

Protests began in force on the 2 July 2012, when an administrative orderdeclared 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, 1December 2012, available at: <http://www.hrw.org/news/2012/12/01/burma-investigate-violent-crackdown-mine-protesters>, accessed 22 March 2013.110 On 5 March 2013, three villagers from the Letpadaung area filed a lawsuit against PresidentThein Sein, who they say should take responsibility for the crackdown on the 29 November. Thesuit was accepted by the regional office, but later rejected.




until the 18 March 2013. It was then that many farmers, no longer able to reachtheir farms, realized that their lands had been officially confiscated for the sakeof the project and that the compensation that they had received was meant forthe loss of their land rights. Villagers reportedly filed complaints with localauthorities,111 but apparently unsatisfied with the result of this effort they beganthe process of organizing resistance. By the end of July when their efforts to beheard began to disrupt work around the site and irritate those working at themine company headquarters, a curfew (under section 144 of the penal code) wasimposed around Salingyi Township. Mid-August saw what the Irrawaddy called“skirmishes [break] out between villagers and the mining company”112 and a500-person strong march, by residents of the closest villages that were sched-uled for relocation, to the administrative office of Salingyi Township, which wasturned back by security forces.113

By the end of August, almost 2 months after the locals affected by theproject began their demonstrations, The Farmland Law and The Vacant, Fallowand Virgin Land Law came into force. These land laws have been highly con-troversial as they are open to abuse (as discussed earlier). Thus the efforts of theLetpadaung villagers started to draw serious national attention and pique theinterest of regional and international media. The high period of protest was fromSeptember 2012 to January 2013. The media (except MG news) was drawn towhat by mid-November were the almost daily demonstrations centring on theland grabs around the Letpadaung mountain. As the protest gained momentumtheir cause began to symbolize the entire nation’s struggle against land grab-bing. Citizens from different ethnic and political groups started supporting theircause.

The Letpadaung protesters have been very imaginative in their efforts tobring attention to their plight and raise awareness of the issues affecting them.On 10 September, a group organized a “mountain gazing” gathering to underlinethe importance of the mountain, and its place in the landscape, that they werelikely to lose. On 12 September saw one of the first of the public meetings thatwere to be organized to discuss the issue and that would bring national figuresfrom historical resistance groups like Generation 88.114 Environmental and legalgroups, like the Burma Lawyers Network and Seinyaungso, an environmentalNGO from Mandalay, began to cooperate with the protesters, conducting

111 Mann Zarni, “Farmers Persist in Fight to Halt Monywa Copper Mine”, The Irrawaddy, 11October 2012, available at: <http://www.irrawaddy.org/archives/16251>, 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.




surveys, and reviewing the agreements that had been made between the localsand the company. By 26 September enough attention had been drawn to theissue that a rare press conference was held by the UMEHL’s Maung Maung, theProject Department Director, who said that they would negotiate with theresidents surrounding the Monywa Copper Mines.

It was not long before this fight took on another dimension. It became notonly a symbol of resistance to land grabbing, which became a secondary themein 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, priorto the 29 November). Attention was being drawn to the importance of thesituation as a test for the reforms and the people’s constitutional right to protest.Theatrical performances, toddy palm plantation, graveyard sit-ins,115 and manyother inventive forms of peaceful protest were carried out during this monthdrawing attention to their cause and to their determination to be seen and heard.As the Asian Human Rights Commission has said, this case encompasses “alldimensions of the struggle for political, legal, and social change in Myanmar[Burma] today, including fundamental rights to freedom of speech and assem-bly, to organize and hold opinions, and to participate fully in public life withoutfear of persecution or violence,” (RFA). Thus this was a test of the reforms takingplace and to what degree the basic freedoms of the Burmese people are sup-ported by the new regime.

With mounting anti-China sentiments in the country, Wanbao MiningCompany’s Geng Yi, the Managing Director of the Myanmar operations, held a

0

5

10

15

20

25

30

Before Sept 2012

Sep-12 Oct-12 Before 29 Nov

From 29 Nov

Dec-12 Jan-13 Feb-13

Nu

mb

er o

f A

rtic

les

Land Grab

Compensation

Environment

Crackdown/Raid

Injured Monks

Figure 7: Number of articles for entire period

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




mid-October press conference in Yangoon.116 Critics of the project have gone sofar as to compare it to the legendary Myitsone Dam case. These negative senti-ments have been reinforced by statements such as those made by Burmeseminister Aung Min, who has been well reported as saying “we [Myanmar] areafraid of China” and “[i]f they feel annoyed with the shutdown of their projectsand resume their support to the communists, the economy in border areas wouldbackslide. So you’d better think seriously”.117 However, there have been effortsto curb this trend, made by Aung San Suu Kyi, a favourite of the media, who toldgathered villagers that “we [Myanmar] have never regarded the People’sRepublic of China as our benefactor. But it is our neighbouring country so wewant to be a friend”.118

Resistance to the expansion project, its land grabs and environmentaldamage have included several law suits (filed by both sides). The first roundof legal action was taken between 5 and 9 October. When both parties filed suitin Sarlingyi Township, villagers aimed to sue both UMEHL and Wanbao. Thesecond round was on October 18th, when the Monywa Mine company officers“filed a defamation lawsuit” against several activists involved in the protest andanother, that it withdrew, against the DVB for falsely reporting their destructionof a pagoda on their site.119 The issue of the “pagoda destruction” was a casethat clearly demonstrated the power of the media and its responsibility, as theoutrage that immediately swept through the predominantly Buddhist nationheld even after the news that it had been a false report. But those feelings ofoutrage, and the protests they spurred in the centre of the country, were theprecursors to those seen after the November 29th crackdown.

Another method that the protesters employed was to encourage an alreadyexisting trend, namely to universalize their resistance and to make their protesta platform from which to begin to discuss other ills plaguing the nation. On 18October, the first Letpadaung People’s Conference was held. It attracted over 40

116 Myanmar Times, “Chinese Mining Firm Threatens Legal Action”, 22 October 2012, availableat: <http://www.mmtimes.com/index.php/national-news/2603-chinese-mining-firm-threatens-legal-action.html>, accessed 22 March 2013.117 Kyaw Phyo Tha, “Fear of China Keeps Copper Mine Open: Aung Min”, The Irrawaddy, 26November 2012, available at: <http://www.irrawaddy.org/archives/19816>, accessed 22 March2013.118 AFP, “Suu Kyi Demands Apology for Crackdown on Protestors”, Democratic Voice ofBurma, 30 November 2012, available at: <http://www.dvb.no/news/suu-kyi-demands-apology-for-crackdown-on-protestors/25066>, accessed 22 March 2013.119 Mizzima, “Both Sides File Suits in Mine Protest”, 11 October 2012, available at: <http://www.mizzima.com/news/inside-burma/8208-both-sides-file-suits-in-mine-protest.html. March22 2013>, accessed 22 March 2013.




organizations and their support from all over Myanmar. Their committee orga-nized and educated those wanting to protest or looking for ways to aid them, aswell as helping all involved look beyond their own struggle.120

Serious sit-ins began from around 18 November, with protesters located in4–6 major camp sites within the “project grounds.” Others, according toIrrawaddy eyewitnesses, set-up “in front of the Myanmar-Wanbao MiningCompany office on the Monywa-Pathein Road, and … at the Lelti [Ledi]Sayadaw Buddhist Building near Kyawyar Village”.121 It was from this timethat the mining operations ceased. However, as protests began to heat up, andarticles focused less and less on the underlying issues of land grabbing, com-pensation and environmental damage, a parliamentary decree called for thecreation of an investigatory commission. It was announced just when largerprotests were gathering for marches in the capital cities of Yangoon andNaypidaw. With the announcement of the creation of the commission came anultimatum: a midnight deadline of the 27 November was ordered by theGovernment for the end to protests; failure to do so would mean “legalaction”.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 Letpadaungproject came on 29 November 2012, when the riot police violently raided theremaining six protest camps (see Figure 4 for change in trend). By the earlyweeks of November, this land grab issue had become a national topic of interest.The Letpadaung case came to symbolize all land grab–related struggles aroundthe country, with the protest effort setting standards for peaceful resistance in anew political era.

Conflict, being a “favourite” of media, is both a selling point of media and acause 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 alldiscussed at this conference.121 Nyein Nyein, “Monywa Copper Mining Protest Resumes”, The Irrawaddy, 20 November2012, available at: <http://www.irrawaddy.org/archives/19339>, accessed 22 March 2013.122 Burma Partnership, “Authorities Arrest Mine Activists”, 27 November 2012, available at:<http://www.burmapartnership.org/2012/11/authorities-arrest-mine-activists/>, accessed 22March 2013.123 Actual figures vary widely, from 100 to 300.




broke into the narrative mass media accelerated their reporting, and interna-tional news held the story more consistently.

The “land grab” narrative, a less visual and universally emotive issue124 wasentirely sidelined by the events of 29 November. At around 3:00 am of themorning that Aung San Suu Kyi was due to arrive and calm the situation withthe protesters, the riot police raided the remaining six protest camps.125 In thepre-dawn, protesters were given 5 minutes to clear out. The police action turnedviolent when smoke bombs containing a flammable compound – at the timesuspected to be military-grade white phosphorus – burnt camp, protesters andmonks alike. Months later it still remained unclear who had actually beenresponsible for ordering this raid as the final report released by theLetpadaung Investigation Committee made no mention of this. Over 100 wereinjured, mostly young monks, with second- and third-degree burns.126

Media immediately took up this story, fanning the flames of national out-rage as photographs of the injured monks were carried, poster size, by protestersand demonstrators, in numbers previously unseen. Figure 4 shows the spike inthe number of articles appearing related to the Letpadaung case after 29November, 68% of them focused on the crackdown and its excessive use offorce. The media groups vary greatly in their labelling of the events however. MBmedia such as The New Light of Myanmar reported on 29 November actions asbeing “riot suppression procedures” and “unavoidably dispersed”.127 CG sourcessimilarly refer to them as “disperse action[s]”.128 In contrast, FBL media cite theactions 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 expressregret 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 theknowledge 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 inDisperse Action”, 2 December 2012, available at: <news.xinhuanet.com/english/world/2012-12/02/c_132013798.htm>, accessed 22 March 2013.129 Zarni Mann, “Court Rejects Complaint against President over Protest”, Irrawaddy, 11 March2013, available at: <http://www.irrawaddy.org/archives/29009>, accessed 22 March 2013.130 Mizzima, “International Condemnation for Monywa Crackdown”, 2 December 2012, avail-able at: <http://www.mizzima.com/news/inside-burma/news/world/8489-international-con-demnation-for-monywa-crackdown.html>, accessed 22 March 2013.




Irrawaddy reported that The Upper Burma Monks organization of Mandalaywere calling on the Burmese government to “formally apologize for the actionwithin five days, to provide sufficient health care for those who were injured andto release seven monks they say were detained”.131 On the 1 December the policeapologised to the head monks, but it was not until the middle of the same monththat the government officially apologised for the actions taken, after thousandsprotested at U Pwar and Eaintawyar Pagodas, Pakokku, and hundreds more inMandalay centre. In a ceremony held 15 December in Atumashi Monastery inMandalay’s Aung Myay, Thar San Township, the Myanmar Government officiallyapologised to the monks for the violent crackdown.132 This was an unprece-dented move that signalled to many that their demands for a show of regret hadbeen heard and respected and that, more importantly, the government wassincere in its claims of reform.

The difference in reporting about the events, however, is extremely pro-nounced when comparing the CG and MG news with the LFB media. The XinhuaCG news reported that “the monks have occupied the project’s restricted areasince 18 November. Despite step-by-step appeal, the demonstrators continued tostay unlawfully up to 28 November, forcing the police to unavoidably dispersethem”.133 Xinhua, CG backed newspaper and MG backed news are the only onesthat 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 govern-ment followed in order to end the protest, which began with the announcementof the investigatory committee.

In essence, the situation following the establishment of the LetpadaungCommittee is a “clean-up” job, resulting from non-transparent and past dealingsbetween the military backed UMEHL, the then government and the investingChinese company. However, in response to a proposal put forward to the PyithuHluttaw on the 23 November 2012, concerning the copper mine expansionproject and the protests in Salingyi Township, Monywa District, SagaingRegion, 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, 1December 2012, available at: <http://www.irrawaddy.org/archives/20285>, accessed 22 March2013.132 Phy o Wai Kyaw and Than Naing Soe, “Myanmar Makes Apology to Monks Over CopperMine Crackdown”, 24 December 2012, available at: <http://www.mmtimes.com/index.php/national-news/mandalay-upper-myanmar/3650-union-ministers-apologise-to-monks-over-november-29-raid.html. 22 March 2013>, accessed 22 March 2013.133 Xinhua, “Myanmar Clarifies Copper Mining Project Incident”, Xinhua English News, 1December 2012, available at: <http://news.xinhuanet.com/english/world/2012-12/01/c_132012688.htm>, accessed 22 March 2013.




29 November, the President announced the creation of an InvestigationCommission.134 1 December 2012 the New Light of Myanmar printed that theInvestigation Commission135 was to determine whether the “copper miningshould be continued and to find out the true situation about the recent contain-ing of protest in Letpadaungtaung [sic] Copper Mining Project in SalingyiTownship, Monywa District, Sagaing Region”.136 The commission was made upof some 41 members (including Ang San Suu Kyi as Chairman and one secre-tary), including activists from the 88 generation group, ministers from theMinistries of Environmental Conservation and Forestry, Science andTechnology, Health, Mining, and five representatives from the Sagaing districtand affected townships. The report was submitted on the 11 March 2013.137 It wasfound that the project had improperly confiscated 1,900 acres (769 hectares) ofland which the report recommended should be returned and the expansionplans re-drawn. Additionally, it recognized that there had been improper meth-ods (intimidation, threats) used to “acquire” consent to use lands and relocatevillagers.

Before the report was completed, Aung San Suu Kyi reportedly said at apress conference on 10 December that “[i]t’s certain that we can’t come up withan answer that will satisfy everyone. There will be some people who are satisfiedand 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 andpeople in the long term”.138 At the time of writing it appeared that the govern-ment had already decided to allow the expansion project to continue, calling forthe “amending [of the] contract signed between Myanma Economic Holdings CoLtd and Wanbao Company” in its press release of 11 March 2013.139 In order toimplement the recommendations of the report a committee was established on12 March, which has already begun the work of righting some of the wrongsdone to those affected by the land grabs. However, not all those affected weresatisfied with the results and clashes with police forces occurred again asprotests 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 interimreport given to the President on the 31 January 2013.138 Ei Ei Toe Lwin, “Commission will Find Fair Solution, Says NLD Leader”, The MyanmarTimes, 10 December 2012, available at: <http://www.mmtimes.com/index.php/national-news/3545-commission-will-find-fair-solution-says-nld-leader.html>, accessed 22 March 2013.139 As reported in The New Light of Myanmar, 13 March 2013.




7 Conclusions

The media discourse shifted its focus throughout the time period in a way thatreflected the changing legal and political situation in the country. As the protestgrew, their reporting followed and new themes were prioritized. The conflict wasoriginally centred on land grabs, compensation and environmental concerns. But aslegislation developed to permit freedomof demonstration and of press, protesters areemboldened and media follows in their wake. The Letpadaung Mine land grabmorphed from a struggle for the protection of citizens’ right to land and work, toone for their right to free expression without fear of repression. International mediathen picked up the narrative and exported the issue as a test case for a reformingMyanmar regime. This trajectory was altered by the 29 November crackdown.Violence being a “simple” and universally recognized motif, one that can be imme-diately denounced, media coverage prioritized this theme.

However, although potentially less identifiable themes, the original con-cerns of protesters over the land grabs and environmental damage were notentirely subsumed by the later more “dramatic” elements. Support for theprotesters spread initially as their case resonated with other national land grabevents. The increase in coverage volume, nationally, regionally and internation-ally that grew with the popularity of the protest demonstrated a trend that mayhave continued without the catalyst of the 29 November raid. The inventive andorganized methods employed by the protesters from the outset pulled innational media interest and then in turn accelerated national support for theirconflict. Media news reporting will continue to play a major role in the future ofthis conflict. However, as each government and non-governmental news sourcevies for the hearts and minds of its target audience, they may choose to prioritizeelements that may misdirect attention from the core issues. This re-focusing is tothe detriment of those affected by the conflict and places the rest of the narrativeout of context.

Acknowledgements: Many thanks for the kind and informative support of Dr.Koichi Fujita, Dr. Fumiharu Mieno, Dr. Yasuyuki Kono and Dr. PavinChachavlpongpun 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: <http://www.article19.org/data/files/medialibrary/3440/12-09-19-LA-Myanmar.pdf>, accessed 10 June 2013.




Asian Human Rights Commission, BURMA: Farmers rise up at land grab by army-ownedcompany (13 September 2012), available at: <http://www.humanrights.asia/news/ahrc-news/AHRC-STM-184-2012>, accessed 22 March 2013.

Assistance Association for Political Prisoners, “President U Thein Sein: Immediately Investigateand Bring to Justice the Police Responsible for Grave Crimes Committed Against PeacefulDemonstrators”, Burma Partnership, 29 November 2012, available at: <http://www.bur-mapartnership.org/2012/11/president-u-thein-sein-immediately-investigate-and-bring-to-justice-the-police-responsible-for-grave-crimes-committed-against-peaceful-demonstra-tors/>, 22 March 2013.

Burma Lawyers Council, Burma’s Election and Constitutional History: A Snapshot, Legal Issueson Burma Journal, no. 7 (December 2000), available at: <http://www.ibiblio.org/obl/docs/LIOB07-Saffin_Snapshot.htm>, accessed 15 June 2013.

Burma Partnership, “Authorities Arrest Mine Activists”, 27 November 2012, available at:<http://www.burmapartnership.org/2012/11/authorities-arrest-mine-activists/>, 22 March2013.

Burma Partnership, “Mining, Repression and Imprisonment, an Uncertain Future,” 8 October2012, available at: <http://www.burmapartnership.org/2012/10/mining-repression-and-imprisonment-an-uncertain-future/>, 22 March 2013.

Burma Partnership, “Rampant Land Confiscation Requires Further Attention and Action fromParliamentary Committee”, Burma Partnership, 12 March 2013, available at: <http://www.burmapartnership.org/2013/03/rampant-land-confiscation-requires-further-attention-and-action-from-parliamentary-committee/>, 22 March 2013.

CIA, “Burma”, The World Factbook, available at: <https://www.cia.gov/library/publications/the-world-factbook/geos/bm.html>, accessed 28 April 2013.

Centre for Independent Reporting, “Burma: Co-Founder of Myanmar Times on Trial”, availableat: <http://cijmalaysia.org/2005/02/08/burma-co-founder-of-myanmar-times-on-trial/>,accessed 26 April 2013.

FAO, What Is Land Tenure, available at: <http://www.fao.org/docrep/005/Y4307E/y4307e05.htm>, accessed 28 April 2013.

FAO, Foreign Direct Investment –Win-Win or Land Grab? (November 2012) available at: <ftp://ftp.fao.org/docrep/fao/meeting/018/k6358e.pdf>, accessed 22 March 2013.

Fujita, K., F. Mieno, and I. Okamoto, The Economic Transition in Myanmar After 1988: MarketEconomy 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: <http://www.hrw.org/news/2012/12/01/burma-investigate-violent-crackdown-mine-protesters>, accessed 22 March 2013.

Ivanhoe Mines Ltd, Annual Information Form For the year ended December 31, 2007, 28 March2008, available at: <http://www.turquoisehill.com/i/pdf/2008AIF.pdf>, accessed 22 March2013.

Ivanhoe, Monywa Copper Mines Fact Files, available at: <http://www.ivanhoemines.com/i/pdf/monywa-fact-file.pdf>, 22 March 2013.

Ivanhoe, Ivanhoe Mines Receives Proceeds of US$103 Million from Monywa Trust: IvanhoeMines Statement, 3 August 2011, <http://www.ivanhoemines.com/i/pdf/NR-Aug-3-11.pdf>,accessed 22 March 2013.




Karmasin, M., and G. Melischek et al., “Perspectives on the Changing Role of Mass Media inHostile Conflicts”, in J. Seethaler et al. (eds.), Selling War: The Role of the Mass Media inHostile Conflicts from World War I to the “War on Terror”, European CommunicationResearch 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 CurrentLegal 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: <http://fr.rsf.org/IMG/pdf/

classement_2013_gb-bd.pdf>, accessed 1 May 2013.Reporters Without Borders, Retrograde Bill ThreatensTentative Progress, available at: <http://en.

rsf.org/burma-retrograde-bill-threatens-07-03-2013,44176.html>, 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: <http://law.nus.edu.sg/sybil/downloads/arti-cles/SJICL-1997-2/SJICL-1997-609.pdf>, accessed 10 July 2013.

Transparency International, Myanmar, available at: <http://www.transparency.org/country#MMR>, accessed 27 April 2013.

UNESCAP, Integrating Environmental Considerations into Economic Policy Making Processes inMyanmar, ESCAP Virtual Library, available at: <http://www.unescap.org/drpad/vc/confer-ence/bg_mm_124_iec.htm>, 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: <http://www.ibiblio.org/obl/docs/LIOB07-KMW.htm>, accessed 20 June 2013.

Woods, K., Ceasefire Capitalism: Military–Private Partnerships, Resource Concessions andMilitary–State Building in the Burma–China Borderlands, 38 The Journal of PeasantStudies, 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.




Government of the Republic of the Union of Myanmar, Ministry of Agriculture and Irrigation, TheVacant, Fallow and Virgin Lands Management Rules, 31 August 2012.

Government of the Republic of the Union of Myanmar, Ministry of Home Affairs, Regulationsrelating to the Right to Peaceful Assembly and Peaceful Procession, 5 July 2012 [Unofficialtranslation].

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, Fallowand 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 PeacefulAssembly and Peaceful Procession Act, 2 December 2011.

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 10 July 2013.

The State Law and Order Restoration Council, The Law Protecting the Peaceful and SystematicTransfer of State Responsibility and the Successful Performance of the Function of theNational Convention against Disturbances and Oppositions, 7 June 71996, available at:<http://www.burmalibrary.org/docs15/1996-SLORC_Law1996-05-anti-subversion_Law-en.pdf>, 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: <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chap-ter=4&lang=en>, accessed 9 July 2013.

UN Treaty Collection, Status of The International Covenant on Social, Economic and CulturalRights, available at: <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en>, accessed 9 July 2013.

Other Media Sources

AFP, “Suu Kyi Demands Apology for Crackdown on Protestors”, Democratic Voice of Burma, 30November 2012, available at: <http://www.dvb.no/news/suu-kyi-demands-apology-for-crackdown-on-protestors/25066>, accessed 22 March 2013.

Aung Hla Tun, “Myanmar State Media Details New Foreign Investment Law”, Reuters, 3November 2012, available at: <http://www.reuters.com/article/2012/11/03/us-myanmar-investment-idUSBRE8A204F20121103>, accessed 6 November 2012.

Eleven, About Us, available at: <http://elevenmyanmar.com/about-us>, 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: <http://

in.reuters.com/article/2012/10/17/myanmar-newlight-media-freedom-idINDEE89G0GJ20121017>, accessed 28 April 2013.




Article

Perry S. Bechky*

International Adjudication of Land Disputes:For Development and Transnationalism

Abstract: This short article offers two observations about international adjudica-tion of land disputes. First, the article shows that such adjudication is intended tofurther development, but that this goal is served better, if counter-intuitively, byrejecting the so-called Salini contribution-to-development test in favor of case-by-case adjudication on the merits. Second, the article locates such adjudicationwithin the modern trend toward transnationalism, a trend that unites internationalinvestment law with human rights law. In light of these observations, the articleconcludes that international adjudication of land disputes may contribute to suchhuman 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 “thecurrent land rush,” “a contemporary surge in global, large-scale land acquisi-tions.”1 With this surge comes controversy. The Food and AgricultureOrganization, for example, has published a report titled “Land Grab orDevelopment Opportunity?”2

This short contribution to the special issue offers two observationsabout international adjudication of land disputes. Part 1 shows that such adju-dication is intended to further development, but that this goal is served better, ifcounter-intuitively, by rejecting the so-called Salini contribution-to-development

*Corresponding author: Perry S. Bechky, Principal, International Trade & Investment Law andVisiting Scholar, School of Law, Seattle University, Seattle, USA, E-mail: [email protected]

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 andInternational Land Deals in Africa (London/Rome: IIED/FAO/IFAD, 2009).




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

1 Land disputes and development

In an arbitration filed in 2011 at the International Centre for Settlement ofInvestment Disputes (“ICSID”), a Malaysian company called Ekran Bhd. claimedthat a local government in Hainan, China, had violated the bilateral investmenttreaty (“BIT”) between China and Malaysia by terminating Ekran’s leaseholdrights to develop “arts and culture facilities” on 900 hectares of land. Chinaargued the local government had the right to terminate the lease, because theinvestor had failed to develop the land.3

Cases like Ekran4 evoke Salini’s development test.5 Article 25 of the ICSIDConvention gives ICSID jurisdiction over “any legal dispute arising directly out ofan investment, between a Contracting State… and a national of another ContractingState, which the parties to the dispute consent in writing to submit to the Centre.”6 In2001, 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 certainduration of performance of the contract and [iii] a participation in the risks of the transac-tion…. In reading the Convention’s preamble, one may add [iv] the contribution to theeconomic 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 May2013, all before an arbitral tribunal was established. See Luke Eric Peterson, China is Sued forthe First Time in an ICSID Arbitration, Investment Arbitration Rep. (26 May 2011); ICSID, List ofConcluded Cases, available at: <www.icsid.worldbank.org>. Little information about the casehas 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 internationallaw 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 andDevelopment Perspective on International Trade Law (Cambridge: Cambridge University Press, 2011),pp. 8–9. Broude’s suggestion raises interesting questions about what practical consequences mightfollow 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 ofOther 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 onJurisdiction, ¶ 52 (July 23, 2001), translated in 42 I.L.M. 609 (2003).

314 P. S. Bechky LDR



ICSID tribunals ever since have wrestled with Salini’s objective approach toinvestment: some have followed it, others have rejected it, while still othershave proposed a variety of alternatives to its four-part “test.”8

One may readily imagine a government invoking Salini’s last prong to objectto ICSID jurisdiction over a case like Ekran. Such an argument would follow thispath: the company did not develop the land as it was supposed to do, thereforeit did not contribute to economic development, therefore it did not make an“investment” as construed by Salini, therefore its claim did not “aris[e] directlyout of an investment” as required by Article 25, and therefore ICSID lackedjurisdiction over the claim.

The contribution-to-development rule has some appeal. First, developmentshould be understood as ICSID’s purpose, or at least its intermediate purpose enroute to improving human welfare, a true end.9 Development is enshrined in thepreamble to the ICSID Convention, which is predicated on “the need for inter-national cooperation for economic development.” Indeed, concern for develop-ment explains ICSID’s very existence: the World Bank – that is, the InternationalBank for Reconstruction and Development – conceived ICSID, sponsored thetalks to create it, and continues to house ICSID and provide it other institutionalsupport “to further [the Bank’s own] overall purpose of promoting economicdevelopment in the world’s poor countries.”10 The contribution-to-developmenttest might therefore be seen as an interpretative gloss furthering the “object andpurpose” of the ICSID Convention.11

Second, the contribution-to-development rule appeals to a certain sense offairness: it requires a quid pro quo, much like the consideration requirement incommon law contracts. By consenting to ICSID arbitration, states give somethingvaluable 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 puresubjectivism, 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) (“Thehuman person is the central subject of development…”). The arguments in this paragraph aredeveloped further in Bechky (2012), supra note 8, pp. 1064–1067.10 Andreas F. Lowenfeld, International Economic Law (2nd ed., Oxford: Oxford UniversityPress, 2008), p. 537; see also Int’l Bank for Reconstruction and Dev., Report of the ExecutiveDirectors on the Convention of the Settlement of Investment Disputes Between States andNationals of Other States, ¶ 9 (18 March 1965) (“In submitting the attached Convention togovernments, the Executive Directors are prompted by the desire to strengthen the partnershipbetween 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.

LDR International Adjudication of Land Disputes 315



countries expect to receive in return is investment that contributes to develop-ment.12 The contribution-to-development test might therefore be seen as a meansof assuring that a claimant gave the quid before it gets the quo.

Third, Wily’s paper also discusses Chief Justice John Marshall’s opinion forthe U.S. Supreme Court in Johnson and Graham’s Lessee v. M’Intosh, whichpoints to a third argument of particular interest to this special issue.13 Thatcase arose from competing claims to ownership of the same land, one derivedfrom the U.S. Government and the other from the Piankeshaw Indians. The Courtheld that no title to land could be acquired from Indians. After reviewing thehistory of European discovery and conquest of North America and the applicablerules of international law, the Court concluded that Indians had only “the rightof occupancy” on land where they lived, but not the right to “dispose of thesoil,” as they had lost that latter right by conquest.14

The Court acknowledged that “this restriction [on transferability] may beopposed to natural right, and to the usages of civilized nations,” and defendedits 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 Europeanshave applied to Indian title, they may, we think, find some excuse, if not justification, inthe 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 waswar and whose subsistence was drawn chiefly from the forest. To leave them in possessionof their country was to leave the country a wilderness…15

The Court thus appears to have accepted that the desirability of developmentprovided “some excuse” for seizing control of Indian lands. Put differently, inChief Justice Marshall’s eyes, the Indians’ failure to contribute to developmenthad 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 investmentprotection … is economic development… Subjection to … the ICSID system is achieved at thecost of a surrender of sovereignty, and this is justified by the belief that economic developmentwill 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 NorthAmerican Indians could have acquired no proprietary interest in the vast tracts of territorywhich 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 didnot expressly adopt defendant’s argument.




once invoked against indigenous populations, Salini now seems to hold inves-tors to the same standard. The contribution-to-development test might thereforebe 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 thejudgment of Member States about how best to use ICSID.18 The ICSID Conventiongives Member States broad discretion to determine in good faith which matters tosubmit to ICSID arbitration, relying on State consent as the touchstone of ICSIDjurisdiction, and arbitral tribunals ought not constrain that discretion unduly.

Tribunals, moreover, are ill-equipped to make the kinds of judgmentsnecessary to determine whether an investment has made a contribution todevelopment. Indeed, one tribunal found it “impossible to ascertain” whetheran investment contributes to development, “the more so as there are highlydiverging views on what constitutes ‘development.’”19 The trouble with trying todefine “development” is exacerbated by the radically different states of devel-opment that exist in the world. Is it even possible for an investment to contributeto the development of a country that is already developed?20 Is it fair to set thejurisdictional bar higher for claims against developed countries than for claimsagainst developing countries?

17 Some of the arguments in the discussion that follows are elaborated in Bechky (2012), supranote 8, pp. 1067–1072, 1084–1093.18 In this regard, post-Salini state practice generally evidences a continuing desire to haveICSID hear cases without a contribution-to-development test, even where states have otherwiseadopted elements of Salini. For example, the ASEAN regional investment treaty and the China-Japan-Korea trilateral investment treaty both consent to ICSID arbitration of disputes arisingfrom an “investment” and both incorporate elements of Salini into their definitions of “invest-ment,” but neither takes Salini’s contribution-to-development prong. See ASEAN ComprehensiveInvestment 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; butsee Southern African Development Community, SADC Model Bilateral Investment TreatyTemplate with Commentary, art. 2 & cmt. (2012) (advocating inclusion of contribution-to-devel-opment in the definition of “investment”).19 Phoenix Action, Ltd. v. Czech Republic, ICSID Case No. ARB/06/5, Award, ¶ 85 (15 April2009).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 projectsuch that no country can ever be fully “developed.” See, e.g., UN Declaration on the Right toDevelopment (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 theentire population and of all individuals”).




The development prong may even harm the cause of development.21 It addscost and unpredictability to ICSID arbitration, diminishing ICSID’s promise as ameans to attract investment by assuring investors access to a reliable forum forresolving disputes.22 The impact falls most heavily on smaller investors, whohave the greatest need for the assurance ICSID provides. While it is difficult toprove that any one small investment has contributed to development of the hoststate, 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 restof Salini is followed). The better alternative is to let investors have their “day incourt,” with case-by-case adjudication on the merits of each claim. This alter-native, it must be stressed, does not mean that investors will always win. To thecontrary, states enjoy a considerable degree of freedom to regulate land in thepublic interest.24 Consider several examples evidencing this regulatoryflexibility:– The U.S. Model BIT provides, “Except in rare circumstances, non-discrimi-

natory regulatory actions by a Party that are designed and applied to protectlegitimate public welfare objectives, such as public health, safety, and theenvironment, do not constitute indirect expropriations.”25

21 The word “may” in the main text indicates an important limit on the claim made in thiscritique. The argument is essentially theoretical, relying on the theories underpinning ICSID’sfoundational syllogism and the idea that raising costs and risks for smaller investors will affecttheir actions on the margins. In this regard, I believe that ICSID’s own premise is essentiallytheoretical, 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 aboveall (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 toEmployment, Job Creation, and Growth 14 (World Bank Dev. Research Grp., Policy ResearchWorking Paper No. 5631, 2011).24 In this regard, a commenter suggested that the state’s freedom also entails the freedom todecide which cases to submit to ICSID. I agree. Consent is the cornerstone, the sine qua non ofICSID jurisdiction. See Bechky (2012), supra note 8, pp. 1053, 1057–1063. The point of Salini’sdevelopment prong, however, is that arbitrators may decide – even where the state hasconsented to jurisdiction – that ICSID cannot hear a case simply because the arbitratorsconclude that the claimant failed to prove that it had contributed to development of the hoststate. It is the consent imperative, not Salini’s objectivism, that best aligns with state discretionto set development policy.25 2012 U.S. Model Bilateral Investment Treaty, Annex B, ¶ 4(b).




– The U.S. Model BIT also provides, “Nothing in this Treaty shall be con-strued... to preclude a Party from applying measures that it considersnecessary for... the protection of its own essential security interests.”26

– Drawing on Article XX of the General Agreement on Tariffs and Trade, theCanadian Model BIT exempts nondiscriminatory measures “necessary: (a) toprotect human, animal or plant life or health;… or (c) for the conservation ofliving or non-living exhaustible natural resources.”27

– The ASEAN regional investment treaty has language similar to both theCanadian “general exceptions” and the U.S. “security exceptions.”28

These examples demonstrate that states often have significant latitude to reg-ulate land to promote development. To be sure, none of them expressly refer-ences “development” by name. Regardless, their language provides ample spacewithin which states may act to promote development, which is undeniably a“legitimate public welfare objective.” Indeed, just as Argentina has argued (withsome success) that the measures it took in response to its 2001 financial crisiswere justified under the “essential security” exception,29 one may imaginecircumstances where a government could invoke the same exception to defendmeasures taken to assure that land is developed properly to meet the needs of“food security” or “energy security.” In the end, whether government action inany particular land controversy violates an investment treaty must be assessedcase-by-case in light of the specific facts and treaty language at issue.

Finally, a critical instrument for assuring that international land deals servethe goal of development must not be overlooked: the lease itself. States shouldtake care that each lease clearly specifies the lessee’s obligations – includingmaking the necessary contributions (such as capital and technology) to developthe land according to specified schedules and regulatory standards that assurebenefits (and avoid environmental and other harms) to the local population –and consequences for breach. Leases, moreover, should assure lessees that theywill not be subjected to arbitrary or unreasonable government actions, butwithout shackling the government’s ability to protect the public interest in theuncertain 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, PublicOrder and Financial Crisis, 59 Int’l & Comp. L.Q. (2010), 325 (reviewing five cases againstArgentina and proposing “human security” as a means to determine when financial crisesimplicate “essential security interests”).




2 Land disputes and transnationalism

One criticism sometimes heard about investor-State dispute settlement is that itgives rights to foreigners above and beyond the rights available to citizens.30

George Gershwin has supplied one response to this criticism: It ain’t necessarilyso. International adjudication may be made available for disputes between land-owners and their own governments – indeed, it is sometimes available already.31

Consider the “white farmer” cases against Zimbabwe, which arose fromZimbabwe’s notorious response to the colonial legacy of land concentration.32

Funnekotter33 is a typical investor-State case: an ICSID tribunal found thatZimbabwe’s actions expropriated the claimants’ farmlands without compensa-tion, in violation of the BIT between the Netherlands and Zimbabwe. Campbell34

is more interesting for present purposes: citizens of Zimbabwe brought aninternational claim against their own government.

Funnekotter is transnational in the important sense that states have openedthe door of international adjudication to private persons, recognizing privatepersons as subjects (and not mere objects) of international law.35 Campbell isstill 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-PacificPartnership (TPP) Investment Text, at 1 (June 13, 2012) (criticizing the draft TPP for giving “foreignfirms … greater rights than domestic firms,” including “a two-track legal system, with foreignfirms empowered to skirt domestic courts and laws”); Sarah Anderson, et al., CollectiveStatement, at 3–7, in Report of the Advisory Committee on International Economic Policy regard-ing the Model Bilateral Investment Treaty, anx. B (30 September 2009) (proposing seven changesto 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 oneContracting State and investors from another Contracting State. Still, as discussed in thissection, 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 allarable land was owned by about 4,500 commercial farmers, mainly whites. Human RightsWatch, 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 caseunder 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 November2008).35 Cf. Aron Broches, The Convention on the Settlement of Investment Disputes Between Statesand Nationals of Other States, 136 Recueil des Cours (1972), 331 (“[T]he most striking feature ofthe Convention is that it firmly establishes the capacity of a private individual or a corporationto proceed directly against a State in an international forum, thus contributing to the growingrecognition of the individual as a subject of international law.”).




principle that international law constrains states’ treatment of their own citizensin their own territories. This is the transnationalism of human rights law,36 andits constraints are the defining feature of modern international law.37

The Zimbabwe cases thus spotlight the common ground between humanrights law and international investment law.38 They share concern for propertyrights, if more centrally in investment law39; there are even human rights treatiesthat expressly extend the “human right” to property to legal persons.40 Theyshare other concerns as well: for the rule of law, for constraints on illegal andarbitrary government actions, for access to fair and independent tribunals, andfor effective remedies. Some individuals suffer from a mix of multiple offenses,as “investment concerns” like property takings and contract breaches may becombined with such “human rights concerns” as imprisonment, false accusa-tions, 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, intro-ductory note (1987) (“The difference in history and in jurisprudential origins between the olderlaw of responsibility for injury to aliens and the newer law of human rights should not concealtheir 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 indivi-dual” 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 humanrights” debate, see Susan L. Karamanian, “Human Rights Dimensions of Investment Law”, in E. deWet and J. Vidmar (eds.), Hierarchy in International Law: The Place of Human Rights (Oxford: OxfordUniversity Press, 2012); Pierre-Marie Dupuy and Jorge E. Viñuales, “Human Rights and InvestmentDisciplines: 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 ofConvergence, 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 (10December 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 June1981, 21 I.L.M. 58 (1982).40 See Protocol No. 1 to the Convention for the Protection of Human Rights and FundamentalFreedoms, art. 1, 20 March 1952, E.T.S. No. 9.41 For example, among more typical issues arising under the Oman-Yemen BIT, an ICSIDtribunal ordered Yemen to pay $1 million in moral damages for “physical duress” of a businessexecutive. 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 seekingdamages from Turkmenistan, after the UN Human Rights Committee found that Turkmenistanhad 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 InvestmentTreaty Arbitration against Turkmenistan, Investment Arb. Rep. (3 April 2013).




rights and investment tribunals. Indeed, similar arguments may be advanced insupport of such tribunals, so finding common ground may help both the humanrights and business communities.

Campbell illuminates this nexus. The Southern African DevelopmentCommunity (“SADC”)42 created a court with jurisdiction over “disputes betweennatural or legal persons and States,” regardless of the claimant’s nationality.43

The SADC empowered private persons to bring claims against member states inany case concerning “interpretation and application” of the SADC Treaty.44 TheSADC Treaty specified only a few general principles and undertakings, including“human rights, democracy, and the rule of law” and a ban on racialdiscrimination.45

Campbell was the SADC Tribunal’s first judgment. In Campbell, the Tribunalfound that it had jurisdiction, because the claim concerned “human rights” and“the rule of law.” The Tribunal rejected Zimbabwe’s argument that these prin-ciples alone could not support jurisdiction without a protocol “to give effect” tothem. On the merits, the Tribunal held that access to courts and a fair hearingare “fundamental rights” and “essential elements of the rule of law,” and thatZimbabwe had deprived the white farmers of their land without opportunity forjudicial review. The Tribunal also held that Zimbabwe had discriminated defacto against the farmers on the basis of race, while observing that it would nothave found a better land reform program to be discriminatory. Ultimately, theTribunal ordered Zimbabwe to pay the farmers “fair compensation” and “to takeall necessary measures … to protect the possession, occupation and ownershipof the [claimants’] lands.”46 Thus, leaving aside differences in process andsubstantive law, the human rights tribunal in Campbell played effectively thesame 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. SeeStephen 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 allavailable remedies or is unable to proceed under the domestic jurisdiction,” id., art. 15.2, butthis condition was readily satisfied in Campbell where Zimbabwe law had ousted the domesticcourts 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 Tribunalof the Southern African Development Community: Implications for Dispute Settlement in SouthernAfrica, 28 ICSID Rev. 45 (2013), 1.




The political reactions to Campbell are also telling. Mike Campbell, his wifeAngela, and his son-in-law Ben Freeth were beaten severely.47 Robert Mugabeexpressly refused to honor the SADC judgment.48 When the Tribunal referred thecase to the SADC Summit to take “appropriate action” to enforce the judgment,49

the Summit instead effectively dissolved the Tribunal and suspended its workpending a treaty amendment to abolish private access.50 The Summit moved toend private access to the Tribunal, apparently at Zimbabwe’s urging, in the faceof a report commissioned by the Summit itself that defended Campbell, rejectedseveral challenges Zimbabwe made to the Tribunal’s legitimacy, expresslydeclined to recommend ending private access lest individuals “be left withouteffective protection” where domestic remedies are inadequate and recom-mended 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 atlength, as they invoke and intertwine human rights and investment arguments:

[S]outhern Africa was building a house of justice, a place where … victims of injusticecould turn with confidence. That house is now in grave danger…

[I]ndividual access to the SADC court constitutes a key legal instrument that has broughthope 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 avital 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 andthe White African (2009).48 See, e.g., Campbell v. Zimbabwe, SADC (T) Case No. 03/2009, Ruling (5 June 2009) (findingZimbabwe had not complied with the Campbell judgment, where inter alia “President RobertMugabe … 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 orreplace Tribunal judges whose terms expired and then “resolved that a new Protocol on theTribunal should be negotiated and that its mandate should be confined to … disputes betweenMember States.” Communiqué, Extraordinary Summit Heads of State and Government of theSouthern Africa Development Community, Windhoek, Namibia, ¶¶ 6–8 (20 May 2011); FinalCommuniqué, 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 note46, pp. 14, 18–19; for a “realist” appraisal of the Summit’s decision, see Laurie Nathan, TheDisbanding 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’sHuman Rights Jurisdiction, 13 Human Rts. L. Rev. (2013), 153, 161–164; Lorand Bartels, Review ofthe Role, Responsibilities and Terms of Reference of the SADC Tribunal (2011).




As an African, I am sad that we should give this image of ourselves that we are basicallynot in favour of the rule of law. It is up to all of us to ensure that SADC not only reinstatesthe Tribunal but also strengthens it.

We need the support of SADC citizens, civil society and the wider community to save theSADC Tribunal so that the rule of law, development and human rights are protectedthroughout our region.52

Likewise, two southern African NGOs and the International Commission ofJurists advocated for the Tribunal in terms that moved beyond standardhuman rights arguments into the realm of investment law. For example:

[E]conomic growth and development will be severely set back should investors andbusinesses be denied the security of having disputes legally determined by a regionaltribunal in the event the domestic setting offers no relief.

Also:

[I]f individual access is denied, those investing or doing business in Southern Africa willhave 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 determi-nation of their entitlements and protection of their property, those considering investing inSouthern Africa confront only substantial disincentive.53

SADC should restore the Tribunal with its right of private access intact. Thiswould hold states to their stated principles and help move reality toward thoseprinciples.54 It would promote the rule of law, sorely needed in Zimbabwe,55 forthe benefit of both Zimbabwe’s citizens and international investors. It wouldalso align SADC with other regional communities:

Both the Economic Community of West African States (ECOWAS) and the East AfricaCommunity secure the rights of individual access to their respective courts, recognisingthat such access is critical to encouraging economic growth. All three economic commu-nities are committed to securing an economic community that ultimately encompasses allof 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: <http://www.osisa.org/law/blog/too-late-save-sadc-tribunal>, accessed 13 August 2012.53 International Commission of Jurists, et al., Submission regarding Amendments to the SADCTribunal 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 aninstitutional arrangement for using state power to bring a recalcitrant reality closer to ourchosen ideals.”).55 According to one study, Zimbabwe ranks 96th out of 97 countries in fundamental rights and90th in civil justice. See World Justice Project, Rule of Law Index, 2012–13, p. 156.




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

In a striking twist, following Mike Campbell’s death, his son-in-law Ben Freethand a farmer who had prevailed in another case at the SADC Tribunal have nowalleged that SADC member states are violating human rights law by under-mining the Tribunal.57 They seek an order requiring the SADC states to restorethe 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, theCouncil of Europe has allowed individuals to bring cases directly against statesbefore the European Court of Human Rights (“ECHR”).60 Doing so caused a fifty-fold jump in activity in Strasbourg, from about 20 cases per year in the system’sfirst 40 years to about 1,000 cases per year since 1998.61 The ECHR has heardmany land disputes – notably including a case affecting the rights of about80,000 Polish citizens.62 In the Americas, private persons can petition the Inter-American 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 isavailable at <http://www.politicsweb.co.za>. At this writing, Tembani’s communication has beendeemed “admissible” and the case is continuing. See Richard Lee, African Commission to HearSADC Tribunal Case (22 November 2012), available at: <www.osisa.org>, 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 provi-sions of various regional and subregional tribunals).60 See Protocol No. 11 to the Convention for the Protection of Human Rights and FundamentalFreedoms, 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 factorwas 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” hadbeen 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 ofHuman 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 broughtto the Court. In 2012, the Commission received 1936 petitions and filed only twelve cases withthe Court. Inter-American Commission on Human Rights, 2012 Annual Report 53, 61 (2013).




Court hears land disputes – including several significant cases addressing theland rights of indigenous peoples.64

The Inter-American effort to secure land rights for indigenous peoples holdsreal promise for Africa. It also responds to another criticism sometimes heard ofinvestor-State arbitration, that its availability tilts the political scales in favor offoreign investors at the expense of domestic interests.65 Making internationaladjudication available for domestic and foreign claimants alike evens the scales.If a state could be brought to an effective, neutral international tribunal forentering a lease that infringed the land rights of citizens, that should encouragestates to give more respect to those land rights when deciding whether to enterthe lease and, if so, on what terms.

Of course, there will be practical difficulties in enforcing the land rights ofAfricans. According to Wily, “[l]ess than 10 percent” of the land in Sub-SaharanAfrica is privately titled.”66 The prospect of effective international adjudicationcapable of enforcing land rights makes it all the more important to find ways toformalize traditional land rights.67

***

International adjudication of land disputes is not, as some might have it, alwaysand necessarily at odds with human values. To the contrary, such adjudicationmay contribute to such human values as development, human rights, and therule of law. States should build the legal infrastructure needed to make suchadjudication available to landowners domestic and foreign. Unfortunately, thebenefits are not inevitable either. Rather, they require attention to the details –to sound contracts, laws, policies, institutions, and governance. Accordingly, tosay the least, states contemplating leases of land subject to traditional rights

64 See generally Thomas M. Antkowiak, Rights, Resources, and Rhetoric: Indigenous Peoples andthe Inter-American Court, 35 U. Penn. J. Int’l L. (forthcoming 2013), p. 113; Mauricio Iván Del ToroHuerta, The Contributions of the Jurisprudence of the Inter-American Court of Human Rights to theConfiguration of Collective Property Rights of Indigenous Peoples, available at: <http://www.law.yale.edu/documents/pdf/sela/Del_Toro.pdf>, accessed 18 June 2013.65 See, e.g., Anderson et al. (2009), supra note 30, p. 3 (criticizing “a system that currentlyelevates the interests of foreign investors over other groups – including labor, environmentaland human rights organizations – which do not enjoy comparable private rights of action toenforce international legal obligations”).66 Wily, supra note 1, p. 6.67 See id., pp. 22–24 (discussing options for formalizing land rights). For further informationabout the importance of securing land rights and about how to do so, see the website ofLandesa, www.landesa.org, an NGO that claims to have helped secure land rights for 400million people in 45 countries.




should ensure that these rights are recognized and respected and that the leasesprotect these rights as well as the public interest.

Acknowledgment: I thank the organizers of the 2013 Law and DevelopmentConference, particularly Yong-Shik Lee and Andreas Neef, for inviting me toparticipate, as well as Tom Antkowiak and David Faber for their helpful com-ments. All mistakes are my own.




Article

Uche Ewelukwa Ofodile*

Managing Foreign Investment inAgricultural Land in Africa: The Role ofBilateral Investment Treaties andInternational Investment Contracts

Abstract: This paper seeks answers to three questions. What are the trends in termsof the role of bilateral investment treaties (BITs) and land contracts in addressingcomplex environmental, social and governance issues implicated in foreign directinvestment in agricultural land (agro-FDI)? Are countries in sub-Saharan Africa(SSA) effectively using these two policy instruments to maximize the benefits ofagro-FDI and to minimize associated risks and dangers? Do countries in SSAappreciate and are they effectively managing the complex interactions betweeninternational investment law, as encapsulated in BITs, and other regimes ofinternational law, particularly the international human rights regime?

Keywords: bilateral investment treaties, agribusiness, agricultural investment inAfrica

DOI 10.1515/ldr-2014-0010

1 Introduction

Foreign acquisition of land for agricultural use is on the rise in sub-SaharanAfrica (SSA) and is a growing source of tension and conflict in many countries.1

*Corresponding author: Uche Ewelukwa Ofodile, University of Arkansas School of Law,Fayetteville, AR, USA, E-mail: [email protected]

1 See generally Grain, Seized! The 2008 Land Grab for Food and Financial Security (Grain,October 2008), available at: <http://www.grain.org/article/entries/93-seized-the-2008-land-grab-for-food-and-finankcial-security>; Margaret C. Lee, The 21st Century Scramble for Africa,24 Journal of Contemporary African Studies, no. 3 (2006), pp. 303–330; Joachim Von Braun andRuth Meinzen-Dick, Int’l Food Policy Research Inst. (IFPRI), Policy Brief 13, “Land Grabbing” by




Indeed, no continent has been spared in this new rush for farmland.2 The classof investors is varied and includes foreign governments, sovereign wealth funds,agribusiness and industry, international private equity groups, and internationalpension funds. Institutional investors are showing growing interest in crop landand agricultural infrastructure as an alternative asset class.3 Predictions aboutthe 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 outperformthe average of all global assets long term.4 One study projects that given theexpected need for additional arable land to be brought into production on aglobal basis, the amount of capital that could enter the farmland and farminfrastructure sector could substantially exceed USD 150 billion.5

However, what some see as filling large investment gaps in Africa, othersdismiss as “land rush,” “land grab,” and even “new colonialism.”6 On the onehand, foreign direct investment in agricultural land (agro-FDI) has the potentialto offer significant macro-level benefits to countries in Africa and may be the keyto revitalizing the agricultural sector in the continent.7 On the other hand,foreign acquisition of farmland in Africa and related push to boost agribusinessin the continent could seriously threaten and undermine human rights andenvironment protection efforts in the continent.8 The question is not simply

Foreign Investors in Developing Countries: Risks and Opportunities (April 2009), available at:<http://www.ifpri.org/sites/default/files/publications/bp013all.pdf>; Lorenzo Cotula, SonjaVermeulen, 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 andEquitable Benefits? (Washington, DC: The World Bank, 2010).2 HighQuest Partners, United States (2010), Private Financial Sector Investment in Farmlandand Agricultural Infrastructure, OECD Food, Agriculture and Fisheries Papers, No. 33, OECDPublishing, <http://dx.doi.org/10.1787/5km7nzpjlr8v-en> [hereinafter HIGHQUEST]; A. Malone,18 July 2008, p. 10.3 BBC News, Hedge Funds “Grabbing Land” in Africa, 8 June 2011, available at: <http://www.bbc.co.uk/news/world-africa-13688683>.4 Maria Kolesnikova, “Grantham Says Farmland Will Outperform All Global Assets”,Bloomberg, 11 August 2011, available at: <http://www.bloomberg.com/news/2011-08-10/gran-tham-says-farmland-will-outperform-all-global-assets-1-.html>.5 HighQuest (2010), supra note 2, para. 35.6 Id.; Andrew Malone, “How China’s Taking Over Africa, and Why the West Should Be VeryWorried”, Mail Online.com, 8 July 2008, available at: <www.dailymail.co.uk/news/article-1036105/How-Chinas-taking-Africa-West-VERY-worried.html>7 S. Haralambous, H. Liversage and M. Romano, The Growing Demand for Land: Risks andOpportunities for Smallholder Farmers (IFAD’s Governing Council, 18 February 2009).8 Id.

330 U. Ewelukwa Ofodile



whether countries in SSA should reject or support agro-FDI. The more criticaland more complex question is whether SSA countries are positioned to seize theopportunities that FDI in land offers and to manage potential risks, dangers, andchallenges. Several questions thus arise. Do bilateral investment treaties (BITs),and international investment law regime more generally, undermine or comple-ment international human rights law as far as addressing the concerns asso-ciated with FDI in land? Are countries in Africa taking steps to ensure that theirnational interests are safeguarded and that human rights and environmentalconcerns are addressed in the land investment agreements that they are con-cluding. What other legal options for maximizing opportunities and mitigatingrisks associated with FDI in land are available to countries in Africa and arecountries utilizing these options?

With a specific focus on Ethiopia, this paper reviews the interactionbetween agro-FDI and BITs, as well as the interaction between agro-FDI andland contracts. The paper argues that most BITs that countries in Africa haveconcluded do not address the social and environmental issues that are impli-cated in agro-FDI and have the potential to constrain the ability of govern-ments to regulate agro-FDI in the public interest. Although attempts areincreasingly made to introduce human rights and sustainable developmentprinciples into BITs, progress has been limited. Few countries in SSA havetaken necessary steps to review, and possibly revise, their BITs.9 Furthermore,the land contracts examined suggests that countries in SSA are not presentlyusing the contracts to distribute the risks, costs, and benefits associated withagro-FDI or to limit exposure to liability under the BITs that they haveconcluded.

This paper highlights the human rights and environmental challenges asso-ciated with agro-FDI in countries with weak regulatory framework and veryfragile institutions. The paper raises a number of questions and calls for furtherstudies into the trends in agro-FDI in Africa and the policy, legal and regulatoryframework within which these are occurring. The paper calls for a closer atten-tion on BITs that States in Africa concluded in the past and are now concludingand to domestic and regional initiatives in the continent to move towarddevelopment-oriented investment policies and BITs.

9 In 2009, South Africa initiated a comprehensive review of its BIT program and subsequentlyannounced 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 BITwith Spain; this BIT terminated on 23 December 2013 at the expiration of the 6 months’ noticecalled for in the agreement. See Department of Trade and Industry, South Africa, BilateralInvestment Treaty Policy Framework Review: Government Position Paper (2009).

Managing Foreign Investment in Agricultural Land in Africa 331



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

2 Foreign investment and land sale/leasecontracts in Africa: a preliminary overviewand critique

Land acquisition by corporate investors can be a force for good or evil depend-ing on how the policy, legal, and institutional framework within which suchinvestments occur. FDI in land can support and strengthen efforts to revitalizethe agricultural sector in Africa, boost agricultural exports, address food inse-curity 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 theeconomic and social rights as well as the civil and political rights of individualsand groups in Africa.10 Risks potentially associated with large-scale agriculturalinvestment in Africa include food insecurity, environmental destruction and/ordegradation, forced evictions of existing users of land, new conflicts over landrights and the intensification of prior conflicts, forced labor, child labor, andillegal expropriation of natural resources.11 Large-scale acquisition of land alsohas 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”, TheGuardian, 11 September 2012, available at: <http://www.guardian.co.uk/sustainable-business/global-land-grab-human-rights-business> (noting that “The opaque conditions under whichthese available or empty lands abruptly switched ownership displaced some of the world’spoorest 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), avail-able at: <http://unctad.org/en/docs/wir2009_en.pdf>.




sites, and fruit trees that local communities including pastoralists and indigen-ous groups typically rely on for food. In a 2010 report, the Center for HumanRights and Global Justice at New York University concluded:

Large-scale land investments can negatively affect many human rights, including, but notlimited 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’shome; the right to an adequate standard of living; the right to non-discrimination andequality; the right to self-determination; the right to development; and the right toadequate remedy.12

The United Nations (UN) Special Rapporteur on the Right to Food and other UNbodies have also warned about the potentially negative impact on human rightsof large-scale investment in agricultural land in developing countries.13

The question taken up in this section is whether and to what extent coun-tries in Africa are using well-developed contracts to mitigate the risks associatedwith agro-FDI. Land contracts are important because they are one tool thatdevelopment-conscious policy makers can use to address weaknesses in domes-tic law, maximize the benefits associated with agro-FDI, and minimize asso-ciated risks.14 Compared to BITs which are usually negotiated on the basis ofpre-existing model texts and are generally one-sided in terms of protectingforeign investment and foreign investors, contracts provide an opportunity forcountries to ensure a balance of rights and obligations as between host govern-ments and foreign investors. The questions to ask are these: Are the landinvestment contracts that governments in Africa are concluding drafted with aview to furthering sustainable development goals in these countries? Are con-tracts drafted to proactively address the human rights and environmental con-cerns associated with agro-FDI?

The conclusion reached in this section is that based on the contractsexamined, governments in Africa are not presently using land investment con-tracts to distribute the risks, costs, and benefits associated with agro-FDI. Mostof 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: CaseStudies on Agricultural and Biofuel Investment (New York: NYU School of Law, 2010) [hereinafterForeign 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 forDevelopment? IIED Briefing (September 2009), available at: <http://pubs.iied.org/17069IIED.html?k=land grab>.




infrastructure development, export growth, etc.) are not mentioned in the con-tracts at all. Moreover, broader environmental and social issues and concernsare 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 chosenbecause they are publicly available and in English. Obviously more contractsinvolving more countries will need to be examined before broader conclusionscan be reached. The ten contracts are not necessarily representative of the landagreements that foreign investors are concluding with other governments inAfrica or the contracts that they are concluding with other land owners inAfrica. The ten agreements examined are: (i) the agreement between theMinistry of Agriculture of Ethiopia (Ministry) and Karuturi Agro Products Plc.,an Indian company (Karuturi Contract)15; (ii) the agreement between the Ministryand Saudi Star Agricultural Development Plc. (Saudi Star Contract)16; (iii) theagreement between the Ministry and Hunan Dafengyuan Agriculture Co., Ltd, aChinese company (Hunan Contract)17; (iv) the agreement between S&P EnergySolutions 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 (WhitefieldContract)19; (vi) the contract between BHO Bio Products Plc. and the Ministry

15 Land Rent Contractual Agreement Made Between Ministry of Agriculture and RuralDevelopment and Karuturi Agro Products Plc. [hereinafter Karuturi Contract], executed on 25thOctober 2010, available at: <http://www.oaklandinstitute.org/sites/oaklandinstitute.org/files/Karuturi-Agreement.pdf>.16 Land Rent Contractual Agreement Made Between Ministry of Agriculture and RuralDevelopment and Saudi Star Agricultural Development Plc. [hereinafter Saudi Star], executed onOctober 25, 2010, available at: http://www.oaklandinstitute.org/sites/oaklandinstitute.org/files/SaudiStar-Agreement.pdf17 Land Rent Contractual Agreement Made Between Ministry of Agriculture and RuralDevelopment and Hunan Dafengyuan Agricultural Co., Ltd [hereinafter Hunan Contract], executedon November 25, 2011, available at: <http://www.solidaritymovement.org/downloads/ethiopianAgPortal/19Hunan-Agreement.pdf>18 Land Rent Contractual Agreement Made Between Ministry of Agriculture And RuralDevelopment And S&P Energy Solutions Plc. [hereinafter S&P Contract], executed March 1,2010, Art. 2.1, available at: <http://www.oaklandinstitute.org/sites/oaklandinstitute.org/files/Shmporji-Agreement.pdf>.19 Land Rent Contractual Agreement Made Between Ministry of Agriculture And RuralDevelopment And Whitefield Cotton Farm Plc. [hereinafter Whitefield Contract], executedJanuary 8, 2010, Art. 1.1., available at: <http://www.oaklandinstitute.org/sites/oaklandinsti-tute.org/files/Whitefield-Agreement.pdf>.




of Agriculture and Rural Development of FDRE (BHO Bio Contract)20; (vii) thecontract between Sannati Agro Farm Enterprises Pvt. Ltd (Ethiopia Branch) andthe Ministry of Agriculture and Rural Development of FDRE (Sannati AgroContract)21; (viii) the contract between Ruchi Agri Plc. and the Ministry ofAgriculture and Rural Development of FDRE (Ruchi Contract)22; (ix) the contractbetween CLC Industries Plc. and the Ministry of Agriculture and RuralDevelopment of FDRE (CLC Contract)23; and (x) the contract Between Ministryof Agriculture and Rural Development and Verdanta Harvest Plc. (VerdantaContract).24 The focus in this section is not on the contracting process althoughthis deserves urgent attention. Rather the focus of this section is specifically onthe 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 incorporatedunder the laws of Ethiopia as private limited companies and operate as sub-sidiaries 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 Developmentand BHO BIO Products Private Limited Company, executed on November 25, 2011, available at<http://www.oaklandinstitute.org/sites/oaklandinstitute.org/files/BHO-Agreement.pdf>.21 Land Rent Contractual Agreement Made Between Ministry of Agriculture and Rural Developmentand Sannati Agro Farm Enterprises Pvt. Ltd (Ethiopia Branch), executed October 1, 2010, availableat: <http://www.oaklandinstitute.org/sites/oaklandinstitute.org/files/Sannati-Agreement.pdf>.22 Land Rent Contractual Agreement Made Between Ministry of Agriculture and RuralDevelopment and Ruchi Agri Plc. [hereinafter Ruchi Contract], executed on April 5, 2010, availableat: <http://www.oaklandinstitute.org/sites/oaklandinstitute.org/files/Ruchi-Agreement.pdf>.23 Land Rent Contractual Agreement Made Between Ministry of Agriculture and Rural Developmentand CLC Industries Plc. [hereinafter CLC Contract], executed on December 25, 2009, available at:<http://www.oaklandinstitute.org/sites/oaklandinstitute.org/files/CLCSpentex-Agreement.pdf>.24 Land Rent Contractual Agreement Made Between Ministry of Agriculture and Rural Developmentand Verdanta Harvest Plc. [hereinafter Verdanta Contract], executed on April 20, 2010, available at<http://www.oaklandinstitute.org/sites/oaklandinstitute.org/files/Verdanta-Agreement.pdf>.25 For example, Karuturi is a subsidiary of Bangalore-based food company, Karuturi Global Ltd, acompany incorporated in India in 1994. See Karuturi, Overview, available at: <http://www.karuturi.com/index.php?option=com_content&task=view&id=12&Itemid=211>. The Hunan Dafengyuan Agri-culture Co., Ltd is a private limited company incorporated in China. Saudi Star AgriculturalDevelopment Plc. is a private limited liability company incorporated under Ethiopian law andowned 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 goldmines to agriculture and cement” and “is also the country’s most prolific philanthropist.” SeeTatiana Serafin, “Sheikh Mohammed Al Amoudi on Philanthropy”, Forbes, 5 June 2013.




Agriculture and Rural Development in Ethiopia. The contracts are fairly short witharticles ranging from 10 to 20.26 The contracts envisage the cultivation of differentforms of agricultural products.27 The contracts are for plots of land measuringbetween 10,000 and 100,000.28 The leases are for periods ranging from 20 years to100 years.29 However, most of the contracts stipulate that the leases can berenewed for additional years mutually agreed between the parties.30 The annuallease rate per hectare appears to be quite low generally ranging from Birr 20 (USD1.16) to Birr 158 ($9.42) per hectare annually.31 The agreements generally call forimmediate 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 19articles in total.27 The Karuturi Contract is for development of palm, cereals, and pulses farm. The HunanContract is “a long term land lease of rural land for Sugar Cane farming and related activities.”See Hunan Contract, Art. 1.1, available at: <http://www.solidaritymovement.org/downloads/ethiopianAgPortal/19Hunan-Agreement.pdf>. The BHO BIO Products Co. Contract is a leaseagreement “to establish a long term land lease of rural land for farming of cereal crops, pulsesand edible oil crops and related activities.” Under the Sannati Agro Farm Contract, Sannati AgroFarm Enterprises agreed to grow rice and rotational pulse and cereal crops. The Ruchi Agricontract is a land lease agreement for soybean farm development. Under the agreement, lesseeis 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, theWhitefieldCotton Farm contract is for 10,000 hectares, as is the Sannati Agro Farm Contract. BHO Bio ProductsCo. 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 periodof 40 years but can be renewed for another additional years mutually agreed between theparties.” The Saudi Star Contract is a 50-year lease of 10,000 hectares (24,711 acres) inEthiopia’s western Gambella region. On the other hand the Whitefield Cotton Farm contract isa 25-year lease. The BHO Bio Products Co. contract is also for a period of 25 years “but can berenewed 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 berenewed 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 totalannual payment comes to only 2,000,000 Birr (USD 116,488.88). Under the Hunan agreement, theannual lease rate per hectare of land is fixed at Birr 158 (USD 9.17) with a total annual amount ofBirr 3,900,000 (USD 226,354.73) and a total amount payable over the duration of the contractperiod 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 (USD83306.970483306.9704) 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 ofthe 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 withinthe first year and the entire plot within 4 years. See Ruchi Agri contract, Article 4.4. The CLCIndustries contract requires the lessee to develop one tenth of the land within 1 year and theentire plot within 7 years.




stipulate that the lessor “reserves the right to revise the lease payment rate as theneed may arise.”33 While some of the contracts require lease payment to com-mence immediately upon the execution of the lease contract, others afford lesseeconsiderable flexibility.34 The contracts stipulate the governing law for operationsto be the laws of Ethiopia.35 In the contracts, the lessor warrants that “it has fullownership and property in the leased area”36 and “shall protect the right of thelessee to the peaceful possession, use and quiet enjoyment thereof.”

2.2 Land investment agreements and sustainabledevelopment in Africa: a critique

On issues such as food security, water rights, environmental protection andconservation, job creation, and social impact of agro-FDI, the contracts do apoor job of effectively distribute the risks, costs, and benefits associated withagro-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 increasedexport growth) are not mentioned in the contracts at all. Although in thecontract there is an effort by the Ethiopian Government to preserve domesticregulatory space these efforts are undermined by weak or ambiguous contrac-tual terms. Key contractual terms are not defined, and overall, very little attemptis made to clarify vague contractual provisions.

2.2.1 Food security

Large-scale acquisition of land by foreign investors can negatively impact foodavailability 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 commenceupon the execution of the said agreements. See The Saudi Star Agreement, Article 2.2.2. See alsoThe Karuturi Agreement, Article 2.2.2. On the other hand, the Verdanta Contract provides for “afive years grace period for the land rent.” The rent for the 5 years is to be prorated over theremaining 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, Article12; The Saudi Star Agreement, Article 12.36 See the Whitefield Cotton Farm Contract, Article 14; The BHO BIO Product Contract, Article14; The Saudi Star Agreement, Article 14.37 Kim Lewis, Land Grab in Africa Threatens Food Security, VOA (5 October 2012), available at:<http://www.voanews.com/content/land-grab-in-africa-threatens-food-security/1521168.html>.




Agribusiness in Southeast Asia (2011) asserts that States “need to accept that theright to food may be violated when people are denied access to land, fishing orhunting grounds, or are deprived of access to adequate and culturally accepta-ble food or by the contamination of food and water sources.”38 Food securityissues arise when land is acquired to grow food exclusively for export marketsand domestic food supply is thereby compromised. Food security concerns alsoarise when large-scale land acquisition results in the forced eviction of priorusers of land or has a negative impact on the livelihood and productivity ofsmallholders. The UN Special Rapporteur on the Right to Food urges that theneed to preserve food security within the host country “should be taken intoaccount proactively, in the negotiation of the investment agreements con-cerned.” Ideally, “these agreements should include a clause providing that acertain minimum percentage of the crops produced shall be sold on localmarkets, and that this percentage may increase, in proportions to be agreed inadvance, if the prices of food commodities on international markets reachcertain levels.”39

On the positive side, the contracts examined do not stipulate that foodgrown by the investors are only for the export market or prohibit investorsfrom selling the products domestically. The contracts also have clauses designedto avoid speculative investment and ensure that investors cultivate the land in atimely manner. The Hunan Contract provides explicitly that the Lessee“is expected to start to develop the land within six months from the date ofexecution of the land lease Agreement.”40 Under the Hunan Contract, “Unless75% of the project land is developed, the lessee has no right to transfer the landor properties developed on the land in favor of any other company or indivi-dual.”41 Article 4 of the Karuturi Contract stipulates that the lessee “shall in noway make any unauthorized use of the leased land beyond the predeterminedpurpose and objective or plan … without the express consent of the lessor inwriting.”

38 Bali Declaration on Human Rights and Agribusiness in Southeast Asia 2011. Adopted at theconclusion of the international meeting of South East Asian Human Rights Institutions on“Human Rights and Business: Plural Legal Approaches to Conflict Resolution, InstitutionalStrengthening and Legal Reform” hosted by the Indonesian National Human RightsCommission (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 ofcore principles and measures to address the human rights challenge, Office of the High Comm’rfor Human Rights, (June 11, 2009) (hereinafter Special Rapporteur).40 Hunan Contract at Art. 3. Emphasis added.41 Id.




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 inthe domestic market. Essentially, nothing in the contracts precludes investorsfrom selling their products in more lucrative overseas markets. The terminationclauses in the contracts can also negatively affect domestic food supply bymaking it easy for investors to abandon their projects. Under the KaruturiContract, the lessee has the right to terminate the agreements “subject to atleast six months prior written notice.”42 Under the Hunan and Saudi Star agree-ments, the lessee can also terminate the contract “subject to at least six monthsprior written notice upon justified good cause.”43

2.2.2 Water rights

The water dimension of large-scale land acquisition has been largely ignored inrecent debates about the social and environmental impact of FDI in land. This isunfortunate. Because frequently water is acquired together with land, large-scale acquisition of agricultural land can affect domestic water supply, triggermajor conflicts over water and compromise other development projects that aState may be pursing. As a report from the Rights and Resources Initiative note“[m]any agricultural landgrabs could equally be called watergrabs, given thatwater 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 wouldappear that water is often neglected in deals involving large-scale acquisition ofland in Africa. The contracts do not address water rights and water issuesdirectly or coherently and do not preserve prior user rights over local watersupply systems. On the contrary, a provision common in the contracts examinedconfers on the lessee, the right to build infrastructures such as dams. Whilesome contracts require that lessees obtain necessary permits prior to buildinginfrastructures 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 LandAcquisitions in Africa – With a Focus on West and Central Africa (Washington, DC: Rights andResources Initiative, 2013).




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

There are many problems associated with granting agricultural investors broadinfrastructure development rights. Expansive rights to construct dams, waterboreholes, and irrigation systems can have serious impact on the environmentand on the right of local communities including the right of pastoralists andindigenous peoples and can trigger conflict between foreign investors and localdwellers.

The relationship between FDI in land in Africa, water rights, and biodiver-sity deserves closer attention particularly because many countries in the regionlack adequate laws on water rights and water use.

2.2.3 Environmental conservation

Large-scale land acquisition can impact the environment in so many waysincluding through deforestation, loss of biodiversity, carbon emissions, soilerosion, and threat to high conservation value forests. Do the land agreementsexamined contain provisions that address the possible negative impact of agri-cultural investment on the environment? Do they call for sustainable forestmanagement? Although environmental issues are addressed, they are notaddressed in a comprehensive and holistic fashion. On the positive side, mostof the contracts examined impose on the lessee the obligation to conduct anenvironmental impact assessment and to conserve the environment. For exam-ple, Article 4.1(d) of the Karuturi Contract stipulates that the lessee shall bear theobligation to provide good care and conservation of the leased land and naturalresources thereon, with particular obligation to: “[c]onserve tree plantations thathave not been cleared for earth works,” “[a]pply appropriate working methodsto prevent soil erosion in sloping areas,” “[o]bserve and implement the entireprovision of legislations providing for natural resource conservation,” and “con-duct environmental impact assessment and deliver the report within threemonths of this agreement.”46 Article 4 of the S&P Energy Contract requiresS&P to conserve tree plantations unless otherwise indicated, prevent soil ero-sion, conserve natural resources, conduct an environmental impact assessment,and remove assets installed on the land upon expiration or termination of thecontract. 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.




contract, to “submit an advance action plan as regards the use of the leasedrural land…” to the Ministry.47

On the negative side, the contracts do not address the environmental con-cerns associated with large-scale land acquisition in a coherent or comprehen-sive manner. Concerns such as deforestation, loss of biodiversity, and carbonemissions are not addressed specifically and directly. The obligations on lesseesare somewhat vague and hard to monitor. The contracts merely require lessee tosubmit activity reports “upon request” and do not provide for effective, inde-pendent, and participatory ex post impact assessment.48 Finally, there is norequirement that the reports of environmental impact assessments be madeavailable to local stakeholders.

2.2.4 Employment creation

Large-scale land acquisition for agricultural purposes has the potential to boostemployment in a host country thus creating much-needed jobs for rural dwellers.Instead of boosting employment, large-scale land acquisitions can undermine theability of smallholders to practice their livelihood. Large-scale land acquisition canalso lead to unemployment through displacement, forced evictions, and failedresettlement efforts. However, critics charge that unless land deals are negotiatedwith employment creation in mind, there is no guarantee that jobs will actually becreated or that the jobs, if created, will be anything other than low-paying jobs. Muchdepends on the farming system that an investor chooses (whether labor intensive orhighly mechanized), the management system such an investor puts in place and thewillingness of a government to impose targeted local content requirements oninvestors. The UN Special Rapporteur on the Right to Food has called that “investorsshould be encouraged to establish and promote farming systems that are labourintensive rather than focused on achieving the highest productivity per hectare.”

The contracts examined in this paper were clearly not negotiated with jobcreation in mind. The contracts do not require lessees to use and prioritize thelocal 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 thelessee is obliged to “provide correct data and investment activity reports upon request by theministry.” Hunan Contract at Art. 4.6.49 UN Special Rapporteur on the Right to food, Olivier de Shutter, Statement ‘Large-scale landacquisitions 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




contracts do not prioritize farming systems that have the potential to inducejob creation and are generally silent on issues pertaining to labor rights and laborconditions. However, the contracts give the lessees full discretion as regardsproduction methods. Under the contracts examined, lessees have the right to“[d]evelop and cultivate the land and harvest the crop and carry on all otheractivities by mechanization or such other means that the lessee shall in its owndiscretion deem fit and proper in the circumstances.”50 There is currently a dearthof information on the number of jobs that large-scale land acquisitions in Africa aregenerating and the condition of jobs that the deals are generating. More studies areneeded 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 massivesociocultural devastation. Negative consequences such as increased health pro-blems, reduced access to health facilities, disruption of social networks and socialcohesion, and destruction of sacred sites have been reported in many countries inAfrica. For vulnerable groups that depend heavily on the commons for food,fodder, firewood, medicine, and other necessities, the impact of large-scale landacquisition is even more devastating. As a mitigating factor, large-scale land dealsoften come with the promise of social infrastructure and services. However,frequently, promised infrastructure and services never materialize. In a numberof cases, promised services have proved inadequate and inaccessible.

The contracts examined do not address the social and cultural consequencesof large-scale land deals. On the contrary, the contracts grant considerable rightsto investors – rights that could be exercised to the detriment of local commu-nities if unsupervised. The right of lessees to build infrastructure on acquiredland is considerable and is likely to have consequences for local communities.Under the contracts, lessees have the right to “[b]uild infrastructure such asdams, water boreholes, power houses, irrigation system[s], roads, bridges … atthe discretion of Lessee upon consultation and submission of permit request withconcerned offices subject to the type and size of the investment project wheneverit deems so appropriate.”51

grabbing’ ” (11 June 2009) at 6 (noting that “Even ‘local content’ provisions requiring prioritisationof 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).




Overall, large-scale land deals can have devastating impact on localcommunities and on vulnerable groups within these communities.Unfortunately, frequently contracts are silent about the social externalitiesassociated with such land deals. According to the Bali Declaration on HumanRights and Agribusiness in Southeast Asia “States must … balance policies andlaws which allow corporate investment in land development, with laws andpolicies 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 dis-crimination and provide equal opportunities to women and strengthenwomen’s access to, and control over, land while respecting family and othersocial networks, and cultural diversity and increase their participation indecision-making processes.”53

2.2.6 Peace, security, and right to personal integrity

Large-scale land acquisition can trigger intra-communal conflicts and exacer-bate existing conflicts. Furthermore, large-scale land deals have the potential tothreaten the peace, security, and integrity of local populations particularly whenthey are backed up by violence and arbitrary arrests from a State’s securityapparatus. Problems also arise when agribusinesses use mercenaries, privatelycontracted police and para-militaries to protect their interests. Presently, fewcountries in Africa appear to be taking steps to ensure that there is rule of law,humane treatment, and a peaceful environment in agribusiness developmentareas.

The contracts examined do not address the peace and security concerns ofrural dwellers and do not explicitly prohibit investors from using mercenaries,privately contracted police and para-militaries. By contrast, the contracts appearto prioritize the peace and security of the investors by obliging the EthiopianGovernment to provide “adequate security” to lessees upon request and withoutcharge. Under most of the contracts, the Ethiopian Government guaranteesinvestors peaceful and trouble-free possession. For example, according toArticle 6.6 of the Karuturi Contract:

The Lessor shall ensure during the period of the lease, Lessee shall enjoy peaceful and troublefree 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.




carrying out its entire activities in the said premises, against any riot, disturbances or anyother 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 hasfull ownership and property rights in the leased area … and shall protect the right ofthe lessee to the peaceful possession, use and quiet enjoyment thereof.”55 Article 6 ofthe S&P Energy Contract requires the lessor to provide adequate security to S&Pwithout charge to enable S&P to carry out its contractual activities and ensure thatS&P enjoys “peaceful and trouble free possession of the premises.” The EthiopianGovernment assumes enormous obligations under these contractual provisions.The cost of providing “adequate security” as and when needed by foreign investorsis bound to be staggering. Contractual provisions such as these put additionalpressure on the Ethiopian Government to take all necessary measures, includingpossibly violence, to deal decisively with individuals and groups that are perceivedto threaten a lessee’s peaceful possession.

2.2.6.1 ConclusionThe contracts examined do not address most of the human rights and environmentalconcerns implicated in large-scale acquisition of farmlands. Governments in Africaare either unwilling or unable to seriously negotiate land agreements with a view tosecuring maximum benefit from the investments for their people. Even when apromising provision is inserted into an investment agreement, oftentimes the provi-sion is insertedwithout careful consideration of the legal and institutional frameworknecessary to make it effective. Ambiguities further undermine the effectiveness ofcontractual terms. None of the contracts examined has a section devoted to definingkey terms. For example, under the Karuturi Contract, the Ethiopian Governmentretains the right to “Terminate the land lease agreement subject to at least sixmonthsprior written notice and consent to both parties by consultation up on justified goodcause.”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 thatboth parties do not agree to the termination. Finally, the contracts fall short ofimposing clear obligations on investors. This is a big omission. The SpecialRapporteur, following his Mission to Benin in 2009, stated that

It [was] particularly important to ensure that foreign investors authorized to produceagrofuels 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; SaudiStar Contract at Art. 6.6.55 Emphasis added.56 Karuturi Contract at Art. 5.4.




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

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

3 Bilateral investment treaties and foreigninvestment in land: Ethiopian case study

Three questions are addressed in this section: First, do BITs address the environ-mental, social, and governance (ESG) obligations of foreign investors? Second,can BITs be drafted to incorporate ESG obligations of investors? Third, what arethe challenges to incorporating ESG obligations in BITs? The focus is on the BITsthat 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 BITsmay constrain policy space and make it difficult for policy makers in Ethiopia toeffectively regulate agro-FDI. Common provisions in BITs – the provision guar-anteeing national treatment (NT), most favored nation (MFN), and the right tofair and equitable treatment; the provision protecting investors against expro-priation; the provision for compensation in the event of war or similar distur-bances; the provision guaranteeing the right to free and immediate transfer ofinvestments; and the provisions relating to investor-State arbitration – maymake it difficult for policy makers to act in the public interest if and when theneed arises. As a result of the core provisions in the BITs the country hasratified, 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.




3.1 Do the BITs incorporate human rights and environmentalnorms and principles?

The BITs that Ethiopia has concluded are not sensitive to the human rights andenvironmental issues that are implicated when vast tracts of agricultural landare acquired by foreign investors. Furthermore, the BITs do not appear to besensitive to broader development objectives. Four characteristics of the BITs areparticularly worrisome. The BITs examined do not: (i) specifically referencehuman rights, environmental protection, or other social issues; (ii) avoid provi-sions that could constrain the ability of a host government to regulate in thepublic interest; (iii) impose binding obligations on investors; (iv) establish clearmechanisms for monitoring compliance or enforcing human rights or environ-mental rights claims; (v) incorporate, directly or indirectly, specific human rightstreaties or environmental protection treaties; (vi) confer on investment tribunalsthe jurisdiction to consider human rights norms and principles when assessing aState’s liability under a BIT; and (vii) do not condition the availability of investorrights on the observance of international law by the investors. However, it isimpossible to make broad generalizations about BITs. Despite their similarity, allBITs are not the same. The scope of a BIT depends largely on the precise wordsand 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, humanrights, environmental protection, or broader ESG issues. Most of the BITs do notmake any specific reference to the human rights treaties or the environmentaltreaties 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 otherinternational commitments made by the contracting parties in the area of humanrights….”57 The problem this creates is that in the event of a dispute, investmenttribunals typically focus on the underlying investment contract and a relevant BITand rarely examine human rights issues and arguments.58

57 Id., at 8.58 Luke Peterson and Kevin Gray, International Bilateral Investment Treaties and in InvestmentTreaty Arbitration (2003) (observing that “there appears to be less scope for human rights issuesto play a determinative role in investment treaty disputes, where investors and host states haveopted to show them little regard.”).




Some of the BITs examined recite, in the preamble, the expectation that theBITs will stimulate the flow of capital and technology, promote economicdevelopment, stimulate prosperity, and stimulate private economic initiatives.For example, in the Ethiopia-Netherlands BIT, State Parties recognize “thatagreement upon the treatment to be accorded to such investments will stimulatethe flow of capital and technology and the economic development of theContracting Parties.”59 In the Ethiopia-Tunisia BIT, State Parties expressed aconviction that a reciprocal protection of investment by virtue of a bilateralagreement “is likely to stimulate private economic initiative and to increaseprosperity in both countries.” The problem with these provisions is that theydo not impose binding obligations on the investor or the home state of theinvestor.

Only the BIT between Ethiopia and the Belgium-Luxembourg Union(Ethiopia-Belgium BIT) has a provision on the environment and a provision onlabor rights. Regarding the environment, in Article 5 of the Ethiopia-Belgiumtreaty State Parties: (1) recognize the right of each Contracting Party to establishits own levels of domestic environmental protection and environmental devel-opment policies and priorities, and to adopt or modify accordingly its environ-mental legislation; (2) agree that each Contracting Party “shall strive to ensurethat its legislation provide for high levels of environmental protection and shallstrive to continue to improve this legislation”; (3) recognize that “it is inap-propriate to encourage investment by relaxing domestic environmental legislation”;and (4) reaffirmed their commitments under the international environmentalagreements, which they have accepted. The BIT also contains a very similarprovision on labor rights. Article 5 is clearly a step in the right direction butfalls short in some important respects. The precise meaning, scope, and implica-tion of Article 5 is not clear. Furthermore, the Article does not impose any bindingobligation on foreign investors.

3.1.2 Provisions that constrain policy space

Some of the provisions of the BITs could potentially limit the ability of theEthiopian Government to legislate in the public interest. The provisions relatingto NT, MFN, fair and equitable treatment, and expropriation are of particularconcern.

59 Emphasis added.




3.1.2.1 Non-discrimination: national treatment and most-favored nationMost 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 byinvestors of the other Contracting State, fair and equitable treatment. Such treatmentshall not be less favorable than that which it accords in like situation to investments ofinvestors or investors of any third state, whichever is the most favorable.60

Pursuant to Article 3(1) of the Ethiopia-Sweden BIT, “Each Contracting Partyshall apply to investments made in its territory by investors of the otherContracting Party a treatment which is no less favorable than that accorded toinvestments made by its own investors or by investors of third states, whicheveris the more favorable.”61 A similar provision is found in other BITs that Ethiopiahas concluded such as the BIT between Ethiopia and Denmark62 and thatbetween Ethiopia and Germany.63

With specific reference to agro-FDI, the NT standard may make it difficult fora Contracting State to adopt policies aimed at encouraging small businesses andsmall-scale farmers as such policies could be deemed to be discriminatory. Forexample, the NT obligation could preclude a government from granting certainadvantages (e.g. tax advantages or small enterprise development incentives) ifthe same advantages will not be extended to foreign investors. The NT clausemay also mean that certain labor or environmental requirements cannot beimposed on agribusinesses unless similar requirements are imposed on small-scale farmers. A better approach is to include in the BITs exceptions to the NTobligation that allow policy-makers space to regulate in the public interest. Forexample, the Ethiopia-Israel BIT states that the NT provisions “shall not pre-clude a differential treatment in the laws or regulations of a Contracting Party orin the exercising of the powers conferred by those laws and regulations, regard-ing rights or privileges granted to its own investors, or to investments or returnsof investment of its own investors.”64 Article 3(3) of the Ethiopia-Sweden BITstipulate that the NT and MFN provision “shall not be construed so as to obligeone Contracting Party to extend to investors of the other Contracting Party thebenefits of any treatment, preference or privilege resulting from any interna-tional 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).




domestic legislation relating wholly or mainly to taxation.” Unfortunately, notall the BITs that Ethiopia has concluded permit such exceptions.

3.1.2.2 Absolute standard of treatment: “fair and equitable” standard, “fullprotection and security,” and so forthMost BITs that Ethiopia has concluded offer foreign investments standards ofprotection that are absolute in the sense that they are not dependent or condi-tioned on how a Contracting State treats investment by nationals or nationals ofthird 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 themanagement, maintenance, use, enjoyment, extension, or disposal of suchinvestments.67 Broadly construed, the standards could impose major obligationson a Contracting State – obligations that such a State may not fully understandor be able to fulfill.68 Regarding the FET standard, the United NationsConference on Trade and Development (UNCTAD) notes that, “[s]ome tribunalshave read an extensive list of disciplines into the FET clause, which are taxingon any State, but especially on developing and least-developed countries; lackof clarity persists regarding the appropriate threshold of liability.”69

The biggest challenge for a country like Ethiopia is the problem of overly broador unrealistic interpretations of the absolute standards of treatment – interpretationsthat could expose the country to millions of dollars in damages in the eventthat the standards are violated. What is the meaning and scope of the fair andequitable standard in the BITs? Is the fair and equitable standard anchored incustomary international law (CIL) or is it to be interpreted in an evolutionarymanner? These questions are important because as Matthew Porterfield rightlynote “linking FET to CIL results in a standard of protection that is more deferentialto 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 InvestmentTreaties, 39 The International Lawyer (2005a), 87–106.69 See UNCTAD, World Investment Report 2012: Towards A New Generation of InvestmentPolicies, available at: <http://www.unctad-docs.org/files/UNCTADWIR2012-Full-en.pdf> at 139.70 Matthew C. Porterfield, A Distinction without a Difference? The Interpretation of Fair andEquitable Treatment under Customary International Law by Investment Tribunals, 3 InvestmentTreaty News Quarterly, no. 3(2013), 3–5.




Unfortunately, most of the BITs that Ethiopia has concluded do not define keyterms – terms that are undeniably ambiguous are unquestionably ambiguous andare potential minefields for the Ethiopian Government.

3.1.2.3 ExpropriationAll the BITs that Ethiopia has concluded protect foreign investment againstunlawful expropriation. The BITs generally protect foreign investments againstexpropriation, nationalization, and measures tantamount to expropriation andnationalization. Most of the BITs cover both direct and indirect forms of expro-priation. Article 5 of the Ethiopia-Denmark BIT stipulates:

Investments of investors of each Contracting Party shall not be nationalised, expropriatedor subjected to measure having effect equivalent to nationalisation or expropriation (here-inafter referred to as “expropriation”) in the territory of the other Contracting Party exceptfor expropriations made in the public interest, on a basis of non-discrimination, carried outunder due process of law, and against prompt, adequate and effective compensation.

Under the Ethiopia-Sweden BIT, “Neither Contracting Party shall take any mea-sure depriving directly or indirectly, an investor of the other Contracting Party ofan investment (hereinafter referred to as ‘expropriation’).”71 The Ethiopia-KuwaitBIT stipulates that investments “shall not be nationalized, expropriated, disposed,or subjected to direct or indirect measures having effect equivalent to nationaliza-tion, expropriation or dispossession.”72 The Ethiopia-Kuwait BIT also specificallyprovides that the term “expropriation” shall also apply to regulatory measures bya Contracting State. According to Article 6.4, the term expropriation: “shall alsoapply to acts of sovereign powers and to interventions or regulatory measures by aContracting State such as the freezing or blocking of the investment, levying ofarbitrary or excessive tax on the investment … or other comparable acts ormeasures, that have a de facto or expropriatory effect….”

As with the absolute standards of treatment, the expropriation clauses inEthiopia’s BITs are overly broad and are vague in many important respects. Keyterms are not defined at all. The BITs are silent about what acts of a ContractingState will be deemed “measures tantamount to expropriation” or “measureshaving an effect equivalent to nationalization” The problem is that the conceptof 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 “NeitherContracting Party shall take any measures of expropriation or nationalization against the invest-ments of an investor….” Article 6 of the Ethiopia-Netherlands BIT states that “Investments ofinvestors of one Contracting Party shall not be expropriated or nationalized or subjected tosimilar measures in the territory of the other Contracting Party.”72 Emphasis added.




regulatory measures by a Contracting State. In Metalclad Corp. vs. Mexico, theTribunal stated:

[E]xpropriation under NAFTA includes not only open, deliberate and acknowledged tak-ings of property, such as outright seizure or formal or obligatory transfer of title in favourof the host State, but also covert or incidental interference with the use of property whichhas the effect of depriving the owner, in whole or in significant part, of the use orreasonably-to-be-expected economic benefit of property even if not necessarily to theobvious 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 aview to ensuring that the expropriation clause in the BITs does not undulyconstrain policy space. Furthermore, an increasing number of BITs providespecific and general exceptions to the obligation on expropriation.

3.1.2.4 Restrictions on performance requirementsA few BITs that Ethiopia has concluded restrict the use of performance require-ments. Restrictions on the use of performance requirements can limit the abilityof a host government to use FDI to advance national development objectivessuch 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 Statemandatory measures, which may require or restrict the purchase of materials, fuel or ofmeans of production, transport or operation of any kind or restrict the marketing of productsinside or outside its territory, or any other measures having the effect of discriminationagainst investments by investors of the other Contracting State in favour of investments byits own investors or by investors of third states.73

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

73 Emphasis added.




3.1.2.5 Stabilization clausesAgro-FDI is often of very long durations. Given the long duration, it is importantthat host countries retain the flexibility to regulate in response to changing circum-stances and changes in international law. Stabilization clauses in BITs may make itdifficult for a Contracting State to retain regulatory flexibility. Generally, stabiliza-tion clauses “limit the ability of governments to have new laws and regulationsapply to a foreign investor that is the beneficiary of such a provision.”74 Some BITsthat Ethiopia has ratified have provisions that have the same effect as standardstabilization clauses. Under the Ethiopia-Sweden BIT, a foreign investment couldenjoy the protection of a BIT for as much as 40 years. Article 11(2) of the BIT betweenEthiopia and Sweden stipulates that the agreement “shall remain in force for aperiod of twenty years” and thereafter “shall remain in force until the expiration oftwelve months from the date that either Contracting Party in writing notifies theother 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 thenotice of termination of this Agreement becomes effective, the provisions of Articles1 to 10 shall remain in force for a further period of 20 years from the date.” TheEthiopia-Denmark BIT (Article 16), the Ethiopia-China BIT (Article 13), and theEthiopia-Israel BIT (Article 14), all contain similar provisions but call for additional10 years protect instead of the 20 years stipulated in the Ethiopia-Sweden BIT.

3.1.2.6 War and Riot clausesAs is the case with most BITs, the BITs that Ethiopia has concluded addresslosses to foreign investors and foreign investment as a result of wars and relatedevents. The BITs provide for NT and/or MFN treatment as regards any measurethat the Ethiopian Government adopts in response to such losses. Article 6 ofEthiopia-Austria BIT stipulates that:

An investor of a Contracting Party who has suffered a loss relating to his investment in theterritory of the other Contracting Party due to war or to other armed conflict, state ofemergency, revolution, insurrection, civil disturbance, or any other similar event in theterritory of the latter Contracting Party, shall be accorded by the latter Contracting Party,as regards restitution, indemnification, compensation or any other settlement, treatmentno less favourable than that which it accords to its own investors or to investors of anythird state, whichever is more favourable to the investor.75

74 Howard Mann, Stabilization in Investment Contracts: Rethinking the Context, Reformulating theResult, Investment Treaty News Quarterly (October 2011), pp. 6–8. See also Shemberg, Andrea“Stabilization Clauses and Human Rights”, 11 March 2008, <http://www.ifc.org/ifcext/enviro.nsf/Attach mentsByTitle/p_StabilizationClausesandHumanRights/$FILE/Stabilization+Paper.pdf>.75 Emphasis added. See also Article 4 of Ethiopia-Malaysia BIT; Article 5 of Ethiopia-Yemen BIT.




Article 6 of the Ethiopia-Denmark BIT appears to be even broader in scope andto cover more grounds:

Investors of one Contracting Party whose investments in the territory of the otherContracting Party suffer losses owing to war or other armed conflict, revolution, a state ofnational emergency, revolt, insurrection, or riot in the territory of the latter ContractingParty, shall be accorded by the latter Contracting Party treatment, as regards restitution,indemnification, compensation or other settlement, no less favourable than that which thelatter 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 theinvestor.76

There are at least two problems with the war and riot clauses found in most ofthe BITs that Ethiopia has concluded. First is their imprecision and potentiallybroad scope. What situations are really covered by the phrase “war, a state ofnational emergency, insurrection, riot or other similar events” or “war or otherarmed conflict, state of national emergency, revolt, civil disturbance, insurrec-tion, riot or other similar events?” Does the phrase cover situations where a localcommunity or an indigenous group displaced by a particular land deal decidesto protest against such a deal? A second problem is that such clauses provide anincentive for a host government to take draconian measures against local com-munities fighting to protect communal land. In Africa communal protestsagainst large-scale land acquisition are growing and the responses of policymakers have been questionable at best.77 In Liberia, palm oil production andacquisition of land to expand palm oil plantations in the country is pitting localcommunities against foreign corporations like Equatorial Palm Oil Plc. (EPO), aUK publicly listed crude palm oil producer founded in 2005.78

3.1.2.7 Dispute settlementEthiopia’s BITs provide for investor-State arbitration and thus permit foreigninvestors to initiate claims directly with international arbitral tribunals. Underthe 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-NetherlandsBIT.77 Sonja Vermeulen and Lorenzo Cotula, Over the Heads of Local People: Consultation, Consentand Recompense in Large-Scale Land Deals for Biofuel Products in Africa, 34 The Journal ofPeasant Studies 899, 904 (2010).78 Global Witness. “UK’s Equatorial Palm Oil Accused of Human Rights Abuses in Liberia”, 20December 2013. Accessed on June 15, 2014. <http://www.globalwitness.org/Liberia/EPO>. Seealso Sustainable Development Institute, “Community Complaint against Equatorial Palm Oil.”Accessed on June 15, 2014. <http://www.forestpeoples.org/sites/fpp/files/news/2013/10/Community%20Complain_LiberiaGrandBassaCounty_Oct2013.pdf>.




dispute to international arbitration and can submit claims to one of the followingfora: (i) the International Center for Settlement of Investment Disputes (ICSID) forsettlement by arbitration under the Washington Convention of 18 March 1965 onthe settlement of Investment Disputes between States and Nationals of OtherStates; (ii) the ICSID under the Rules Governing the Additional Facility for theAdministration of proceedings by the Secretariat of the ICSID (ICSID AdditionalFacility Rules); or (iii) an ad hoc tribunal setup under Arbitration Rules of theUnited Nations Commission on International Trade Law (UNICITRAL). Theappointing authority under the said rules shall be the Secretary-General ofICSID. 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 concilia-tion or arbitration is the more appropriate method of settlement, “the investorshall have the right to choose.” While most of the BITs that Ethiopia has con-cluded allow investors to submit any dispute concerning an investment betweenan investor of one Contracting Party and the other Contracting Party to interna-tional arbitration, the scope of investor-State dispute settlement under the BITbetween Ethiopia and China is more limited. Under the Ethiopia-China BIT, theonly disputes that may be submitted to an ad hoc arbitral tribunal are disputes“involving the amount of compensation for expropriation which cannot be settledwithin six months after resort to negotiations.”79

There are major concerns and problems with the current system investor-Statedispute settlement system – concerns and problems that a developing country likeEthiopia should be aware of and seek to address proactively. While the originalconception of an ISDS system may have been great, UNCTAD rightly notes that “theactual functioning of ISDS under investment treaties has led to concerns aboutsystemic deficiencies in the regime.”80 What are these deficiencies? Perceived pro-blems in the ISDS include: (i) exponential increase in the number of claims broughtby investors against host governments; (ii) use of the ISDS to challenge sensitivepublic 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 wellbeyond the original intent of Contracting States; (iv) inconsistent and contradictoryarbitral decisions; and (v) concerns relating to the costs of arbitral procedure andhuge 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 IssueNote No. 2 (June 2013).




and Petroleum Resources Development Act of 2002 which was passed to increasethe participation of historically disadvantaged South Africans amounted toexpropriation 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 publicinterest. First, most BITs, including those that Ethiopia has concluded, do notimpose obligations of any kind on foreign investors but nevertheless accords theseinvestors a host of substantive and procedural rights. Second, most BITs do notprovide opportunity for individuals or groups whose rights are violated by foreigninvestors to seek redress through ad hoc investment tribunals. However, the sameBITs guarantee to investors the right to initiate claims against host governmentswith 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 positivenote, some recent BITs appear to be moving in the direction of addressinginvestor obligations and corporate social responsibility more generally. Forexample, Article 16 of the BIT between Canada and Benin states:

Each Contracting Party should encourage enterprises operating within its territory orsubject to its jurisdiction to voluntarily incorporate internationally recognized standardsof corporate social responsibility in their practices and internal policies, such as state-ments of principle that have been endorsed or are supported by the Contracting Parties.These principles address issues such as labour, the environment, human rights, commu-nity 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 andinvestor protection remain the norm, a growing number of countries are embra-cing less traditional BIT models – BITs that attempt to integrate sustainability




considerations even while protecting investor interests. Organizations likeUNCTAD are now advocating the need for a “new generation” of BITs andinternational investment agreements more generally.81 According to UNCTAD:

1. Although many of the recently concluded IIAs follow the traditional BIT model …, othersinclude innovations. Several of the new features are meant to ensure that the treaty doesnot interfere with, but instead contributes to countries’ development strategies that focuson inclusive economic growth, supports policies for industrial development, and addressesenvironmental and social impacts of assessments.82

Is there a need for Ethiopia to negotiate a “new generation” of BITs? The answeris an unequivocal “yes”. Although some of Ethiopia’s BITs appear to have beendrafted with some considerations of their development-implication, there is noevidence that most of the BITs were negotiated with sustainable development inmind. 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 andequitable treatment,” “full protection and security,” “unreasonable or dis-criminatory measure,” expropriate, nationalize, and unreasonable delay arenot defined in most of the BITs84;

– Provision relating to investor-State dispute settlement that does not addressexisting 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 FreshApproach to Multilateral Investment Policy-Making, IIA Issues Note No. 5 (2013) (hereinafter “ANew 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-GermanyBIT, Article 3(3) (defining the term “treatment less favorable”).85 Under the Ethiopia-China BIT, only “a dispute involving the amount of compensation forexpropriation” 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 Ethiopia-Russia BIT; and, The Ethiopia-China BIT has one. See Article 9(3). The Ethiopia-Tunisia BIT alsohas a fork-in-the-road clause (Article 7(3)(b)). The Ethiopia-Germany BIT has what may be calleda modified fork-in-the-road clause and stipulates that: “If an investor from … Germany hasseized a local court in … Ethiopia, the dispute can be submitted to international arbitration onlyif the local court has not yet rendered a decision which finally disposes the case” Article 11(3). Asimilar provision appears in Article 8(4) of the Ethiopia-Israel BIT.




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 aContracting Party, whether prior to or after the entry into force of theagreement)90 and others are not (provisions apply to investments madeafter the date of the entry into force of the BIT)91;

– The absence, in most of the BITs, of a “general exception” clause or specificexceptions that permits the Ethiopian Government necessary policy spaceto regulate in the public interest.92 However, most of the BITs exemptfrom the MFN obligation, membership in custom unions, or regional tradearrangements as well as international arrangements relating to taxation;

– The inclusion of so-called umbrella clause – a clause that is very contro-versial in international investment law and has been the subject of incon-sistent interpretation by arbitral tribunals93;

– The extension of some BIT obligations to matters relating wholly or mainlyto taxation.94 Critics would argue that extending BIT obligations to taxationissues 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 providingfor a 10-year survival period).88 Ethiopia-Netherlands BIT, Article 14 (3) (Stipulating a 15-year survival period). Ethiopia-Russia BIT, Article 12 (also stipulating a 15-year survival period). See also Ethiopia-GermanyBIT, 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-IsraelBIT, 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 forreasons of public security and order, public health or morality shall not be deemed ‘treatmentless favorable’”).93 Ethiopia-Germany BIT, Article 2(3) (stipulating that “Each Contracting Party shall observeany commitment it may have entered into with regards to investments of investors of the otherContracting 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 tofiscal deductions and exemptions.” Article 4 permits three exceptions only: (i) obligation underdouble taxation treaties; (ii) obligations assumed as a result of participation in a custom unionor 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 result-ing from “any international agreement or arrangement relating wholly or mainly to taxation orany domestic legislation relating wholly or mainly to taxation.”).




– The inclusion in the BITs of an expansive transparency obligation that mostcountries in Africa, given their present state of development, will be unableto meet95;

– Very short “definition” section suggesting a failure to define obligation ofcontracting parties with sufficient clarity.96

Some BITs that Ethiopia has concluded appear to be more progressive thanothers 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 accordancewith the laws and regulations of Contracting Party97;

– Absence of a strict NT requirement98;– Provision for periodic consultation for purposes of reviewing the implemen-

tation of the BITs99; and– Limited exception to the NT and MFN obligation.100 Article 7 of the Ethiopia-

Israel BIT (Exceptions) permits either Contracting Party to “take measuresstrictly necessary for the maintenance or protection of its essential securityinterests.” Article 14 of the Ethiopia-Finland BIT (General Derogation) has asecurity exception and a “public order” exception.101

In conclusion, most of the BITs examined do not address sustainable developmentdirectly and do not appear to afford the Ethiopian Government necessary policyspace to address these issues if and when the need arises. Implicit in the BITs isan assumption that domestic law and institutions are strong, will address the

95 At least one BIT that Ethiopia has concluded imposes a transparency obligation onContracting 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 (onlythree 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 198 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 relatingwholly or mainly to taxation.”). Ethiopia-Israel BIT, Article 3(3).101 Article 14 of the Ethiopia-Finland BIT (General Derogation) permits Contracting Parties totake any action “necessary for the protection of its essential security interests in time of war orarmed conflict, or other emergency in international relations.”




issues that are not addressed in the BITs, and will impose necessary discipline onforeign 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 reviewtheir investment policy with a view to striking the necessary balance between thegoals of investor protection and the goals of sustainable development. Clearly, tomaximize the benefits associated with foreign investment in land, there must becomplete alignment between domestic law, land agreements, BITs, and otherinternational agreements that governments in Africa are party to.

4 Disciplining foreign investment in land inAfrica: 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, andpredictions regarding continued economic growth in these economies. Africaneeds massive investment in agriculture and agro-FDI can provide the capitalneeded for infrastructure and other developments in the continent.102 For mostcountries in Africa, then, the choice is not whether to wholly embrace or totallyreject FDI in land. The challenge is how to maximize the potential benefits thatcome from FDI in land while minimizing related costs. The UN SpecialRapporteur on the Right to Food urges that “When considering a proposedinvestment in agriculture that implies large-scale shifts in land use, govern-ments should first consider the opportunity costs involved.”103 Furthermore,organizations such as the Food and Agricultural Organization and the WorldBank admit that “where rights are not well defined, governance is weak, or thoseaffected lack voice, there is evidence that such investment can carry consider-able 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 bevery mindful of their obligations under international human rights law and

102 Olivier de Shutter “investment in agriculture is needed, particularly in some regions indeveloping countries where this sector has been neglected for the past 30 years. Lack ofinvestment is responsible for the fact that, for example, average cereal yields in Africa havestagnated at 1.3 tons per hectare, whereas the figure is 4.7 tons per hectare for East Asia. Thereis no doubt that such discrepancies can be reduced.”103 Forward, Center for Human Rights and Global Justice, Foreign Land Deals and HumanRights: Case Studies on Agricultural and Biofuel Investment (2009).104 Briefing Note, supra note 1, at 2.




international environmental law when they engage foreign investors; and (iii) donot invite or allow public participation in decisions regarding whether to acceptor reject a particular investment proposal. What then for countries in SSA goingforward? Can anything be done to balance the interest of foreign investors andthose of host States and host communities? First, countries need to pay closerattention to the investment agreements that they are negotiating and need tointroduce greater transparency into the contract negotiation process. Second,there is an urgent need for countries in Africa to review their BIT program with aview to moving toward more balanced BITs and IIAs.

4.1 Proposals regarding contracts for large-scale acquisitionof agricultural land

Whether large-scale acquisition of farmland will contribute to poverty reductionand sustainable development in Africa in the long term will largely depend onthe way the arrangements are structured and the terms of related investmentcontracts? 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 ruralpoverty, and there are a variety of strategies to ensure that land will be used inways that are productive and can contribute to local food security.”105 Fewcountries have carried out comprehensive studies to understand the potentialimpact of large-scale land acquisition on smallholders and on vulnerable groupssuch as women and indigenous populations. While organizations such as theFood and Agricultural Organization and the World Bank admit that “many largefarming ventures attempted in the past have proven unsuccessful,” why theseprojects failed in the past and whether the failures could have been avoidedthrough the use of better negotiated contracts has not been the subject of muchstudy. There are many steps that governments in Africa can take to ensure thatthe land contracts they conclude with investors (both foreign and domestic)effectively distributes the risks, costs, and benefits associated with privateinvestment in agricultural land. There is need for governments to introducegreater transparency in contract negotiations and greater accountability in con-tract implementation. Using lawyers who are experts in international investmentlaw and using multi-disciplinary team of experts when negotiating land agree-ments with foreign investors is necessary given the growing complexity ofinternational investment law and arbitration and the highly technical andscientific issues frequently encountered in land deals. It is important that land

105 Special Rapporteur, supra note 49.




agreements with private investors allow sufficient regulatory flexibility to allowgovernments necessary policy space to respond to changing situations andchanges in international law. Finally, it is important that land agreementswith private investors are concluded against the backdrop of obligations thatContracting States have undertaken under international human rights law andinternational environmental law and that efforts are made to ensure that thesecontract 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 theBITs they have ratified. Only a complete and comprehensive review of existingBITs will help countries assess the true cost and benefits of BITs. In 2009, SouthAfrica’s Department of Trade & Industry (the “DTI”) initiated a review of the BITsthat 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 with-out the necessary safeguards to preserve flexibility in a number of critical policyareas.”107

4.2.2 A coherent and development-oriented FDI policy

Before embarking on massive agro-investment underwritten by foreign inves-tors, countries in Africa must develop and operationalize development-orientedFDI policies. Investment policies must be balanced and must be fully integratedinto broader development goals and objectives. According to UNCTAD, abalanced investment policy must strive to “create synergies with wider economicdevelopment goals or industrial policies, and achieve seamless integration indevelopment strategies”108; “foster responsible investor behavior and incorporateprinciples of [Corporate Social Responsibility]”109; and “ensure policy

106 The Department of Trade and Industry, Republic of South Africa, NOTICE 961 OF 2009, 7July 2009.107 Id.108 UNCTAD, World Investment Report 2012 24 (2012) (emphasis added).109 Id. Emphasis added.




effectiveness in their design and implementation and in the institutional envir-onment within which they operate.”110 As part of the assessment of the country’sBIT regime, South Africa’s DTI found that the country’s approach to both inwardand outward FDIs “had not been informed by a holistic policy perspective butrather a patchwork of general policy considerations.”111 The SpecialRepresentative of the Secretary-General on the Issue of Human Rights andTransnational Corporations and other Business Enterprises has also drawnattention 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 positivechanges are emerging at the regional level. For example, in June of 2012,Member States of the Southern African Development Community (SADC) con-cluded work on the draft SADC Model Bilateral Investment Treaty Template withCommentary (Model BIT).113 Novel features of the Model BIT include Part 3 titled“Rights and Obligations of Investors and State Parties.” Part 3 addresses issuessuch as Environmental and Social Impact Assessment (Article 13); MinimumStandard for Human Rights, Environment and Labour (Article 15); CorporateGovernance Standards (Article 16); and Investor Liability (Article 17).Unfortunately, SADC Member States do not appear keen to include features ofthe SADC Model BIT in the BITs that they are negotiating. To date, only SouthAfrica has taken steps to move away from the traditional approach to BITs. On 23June 2013, South Africa served a notice of termination in respect of its BIT withSpain; the BIT terminated on 23 December 2013 at the expiration of the 6months’ notice called for in the agreement. South Africa’s BITs with Belgium &Luxembourg (notice served on 7 September 2012), Germany (notice served on 23October 2013), Switzerland (notice served on 30 October 2013) and TheNetherlands (notice served on 1 November 2013) have either been terminatedor are in the process of being terminated. On 29 October 2013, South Africa’sacting Minister of Trade and Industry published, for public comments, thePromotion 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: <http://www.iisd.org/itn/wp-content/uploads/2012/10/SADC-Model-BIT-Template-Final.pdf>




eventually replace South Africa’s existing BITs.114 In the PPI Bill, there is a clearattempt to clarify key terms, introduce exception clauses, and limit access to theinvestor-state dispute settlement mechanism.

Overall, there is now a growing trend toward “balanced” investment trea-ties. Balanced treaties are those that “accommodate the home state’s interests inconserving regulatory space by introducing provisions that avoid liability fortreaty violations by identifying circumstances in which a state may regulateforeign investment.”115 Novel provisions can be introduced to limit the discretionof 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 forinvestors to bring claims; a fork-in-the-road clause; requirement of transpar-ency in arbitral proceedings; a provision permitting ad hoc tribunals toaccept amicus curaie briefs; and a provision permitting a State againstwhom 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 obligationsthrough the use of general exceptions and carve outs. Some BITs (e.g.Canada-Benin BIT) now have general exception clauses that are very similarto 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 ProtectionInvestment Bill, 2013, General Notice 1087, Government Gazette No. 36995.115 M. Sornarajah, Mutations of Neo-Liberalism in International Investment Law, 3 Trade, Lawand Development, no. 1 (2011), 203, 228.116 For example, Article 10 of Canada’s 2004 Model BIT for the Promotion and Protection ofInvestments. Available at: <http://www.international.gc.ca/trade-agreements-accordscommer-ciaux/assets/pdfs/2004-FIPA-model-en.pdf>.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, MarrakeshAgreement Establishing the World Trade Organization, Annex 1A.




4.2.4 Common African position on international investment rule-making

African countries must urgently explore the possibility of developing a commonAfrican position on FDI and international investment rule-making more gener-ally. A coordinated African voice on investment policy would help addressproblems related to lack of negotiation capacity, prevent a race to the bottom,and strengthen the ability of these countries to defend their offensive anddefensive interests in BIT negotiations. While some regional economic commu-nities in the Africa have attempted to develop model BITs, there is as yet nocoordinated African voice on BITs and IIAs and no attempt to adopt a commonposition 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 mak-ing major inroads in Africa and are gradually making their mark in the agricul-tural sector in the continent. However, South–South investments do notautomatically yield win–win outcomes for participating countries.Furthermore, there is no evidence that compared to North–South investmentsSouth–South investments offers real opportunities for countries in Africa toaddress core development challenges. The BITs reviewed do not reveal majordifferences between the BITs that Ethiopia concluded with developed countriesand those that it concluded with developing countries. On the contrary, in theirBITs, developing countries appear to be adopting essentially the same modelthat developed countries have traditionally used.119 It is time to seriously inter-rogate fairness and accountability in South–South trade and investment rela-tions. Questions must also be increasingly asked about the cost and benefit ofSouth–South trade and investment links for poor developing countries particu-larly the least developed countries in Africa.

5 Conclusions

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

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




expansion of agrofuel production and renewed determination to address foodinsecurity in Africa. Acquisition of large-scale agricultural land in Africa raises ahost of environmental, social and governance issues and concerns. Althoughlarge-scale acquisition of land for agricultural purposes promises immense gainsto countries in Africa, the benefits associated with such investments are notguaranteed. It is therefore important for countries to seriously assess benefitsand costs associated with such investments. In response to the efforts of Beninto develop the country’s agrofuel sector, the UN Special Rapporteur on the Rightto Food warns that agrofuel production “will not contribute to the country’shuman development if, rather than improve farm incomes, it increases inequal-ities in rural areas by rendering access to land ownership more difficult for smallfarmers.”120 According to the Special Rapporteur, the production of agrofuels forexport “may jeopardize food security if it reinforces the country’s dependence onfood imports, and hence its exposure to price volatility, and if it causes foodproduced locally to become more expensive.”121

Carefully drafted land contracts are indispensable in any effort to manageand discipline agro-FDI in Africa. Countries also need to review their BITs with aview to addressing development challenges that they presently pose and ensur-ing that foreign investment advance the goals of sustainable development in thecontinent. Foreign investments deserve maximum protection and enabling busi-ness environment is necessary if countries in Africa are to be competitive intodays global environment. Going forward, the challenge for countries in Africais to establish the legal and institutional framework that is business-friendly andat 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 FoodProduction”, 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 February2011.

FAO, “FAO Head Warns on Land-Grabbing: Foreign Investment as Tool for Development”, UnitedNations Food and Agriculture Organisation Media Centre, 12 May 2011.

120 A/HRC/13/33/Add.3.121 Id.




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), Addis-Ababa, 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 ofco-signers is, available at: <http://farmlandgrab.org/post/view/12200>, 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 LandAcquisition and Displacement” Rally in New Delhi, 5 August 2011.

Ramesh, M., “Solvent Extractors Want Govt Aid to Buy Farmland Abroad”, The HinduBusinessline, 27 October 2009.

Ramsurya, M.V., “Indian Companies Buy Land Abroad for Agricultural Products”, EconomicTimes (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 forSustainable Development, 2009).

Vashisht, D., “Punjab’s African Plot”, Indian Express, 11 July 2010.




von Braun, J., and R.Meinzen-Dick,“‘Land Grabbing’ by Foreign Investors in DevelopingCountries: 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 forLocals”, World Watch Institute, 26 July 2011.




Article

Lorenza Paoloni* and Antonio Onorati

Regulations of Large-Scale Acquisitions ofLand: The Case of the Voluntary Guidelineson the Responsible Governance of Land,Fisheries and Forests

Abstract: This article focuses on the recent international agreement now knownas Voluntary Guidelines on the Responsible Governance of Land, Fisheries andForests. The drafting process for this international agreement, achieved througha transparent consultation activity, started by FAO and finalized through inter-governmental negotiations led by CFS (Committee on World Food Security, abody of the U.N.), also including the participation of civil society organizations,international organizations, private sector representatives, academics andresearchers. The engagement of rural social movements and other Civil SocietyOrganizations in the negotiation process is an unprecedented effort in influen-cing governments to establish guidelines to gain greater access to land resourcesat the global scale. The Guidelines aim to promote food security and sustainabledevelopment by improving secure access to land, fisheries and forests, espe-cially for small food producers, and protecting the legitimate tenure rights ofmillions of people against forms of grabbing, concentration, commodificationand privatization of land which are shaping agrarian systems. They have beenelaborated on the basis of human rights and in respect of local communitiesrights. From a strictly legal point of view, the Guidelines are not mandatory andhence they are not a source of legally binding effects for every single State. Theydo not derive from a formal legislative proceeding, and they are the result of aconsultation and negotiation process coming from the bottom. Every State andinternational organization is called on to guarantee the implementation, mon-itoring and evaluation of the Guidelines. The authors contend, with criticalarguments, that the process of consultation and negotiation that led to theendorsement 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] Onorati, NGO Crocevia-Centro Internazionale, Rome, Italy,E-mail: [email protected]




large-scale land acquisitions – and very significant because it involved civilsociety and social movements, giving rise to an innovative instrument ofsoft 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 Governanceof Tenure of Land, Fisheries and Forests in the Context of National FoodSecurity1 is an unprecedented event in the framework of large-scale land acqui-sitions. This process, finalized on 11 May 2012 is the result of a large collectiveeffort of the International Facilitation Group,2 established by the InternationalPlanning Committee for Food Sovereignty3 and the Civil Society Mechanism4

1 Hereafter referred to as the VGGT. The entire document on Voluntary Guidelines on theResponsible Governance of Tenure of Land, Fisheries and Forests in the Context of NationalFood Security is available at: <www.fao.org/nr/tenure/voluntary-guidelines>.2 ThisGroupconsistedof26members fromallcontinentsandhadtheparticipationofrepresentativesof the followingorganizations:WorldAllianceofMobile IndigenousPeoples (WAMIP), Friendsof theEarth International, CENESTA, Asian Peasant Coalition, International Collective in Support ofFisherworkers (ICSF), International Indian Treaty Council (IITC), CROCEVIA, FIAN International,World Forum of Fish Harvesters and FishWorkers (WFF), Focus on the Global South, ArabGroup fortheProtectionofNature, IMSE,LaViaCampesina,MAELA,NationalIndigenousPeasantMovementofArgentina (MNCI), Network of Farmers´ and Agricultural Producers´ Organizations of West Africa(ROPPA), PesticideActionNetworkAsiaand thePacific (PAN-AP),HousingandLandRightsNetworkofHabitat InternationalCoalition (HIC-HLRN).After thecreationof theCivil SocietyMechanismof theCFS inMay2011, thisgroupbecameaCSMworkinggroupandmoreorganizations suchasActionAid,OXFAM and others joined the group. The group was coordinated by Sofia Monsalve from FIAN andsupported 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 regionalnetworks of small food producers organizations.4 Hereafter referred toasCSM. “Civil societyorganizes itsownparticipation through theCivil SocietyMechanism.TheCSM facilitates civil societyengagementwith theCFSbysharing informationamongcivil societynetworksandorganizingconsultationson issues that theCFS isworkingon. Through theCSMcivil societygroupscandevelopcommonpositionswhenpossible,andagreetopresent therangeof positions where there is no consensus. The CSM structures itself around ‘constituencies’ andgeographical regions. The constituencies are farmers, fisherfolk, landless, indigenous peoples,pastoralists, agricultural workers, urban poor, women, youth and NGOs. Representatives from theconstituencies and the regionsmake up a coordinating committee which guides the CSM”, Glopolis,WhyDoes Responsible Investment in AgricultureMatter? (2013), available at: <www.glopolis.org>.

370 L. Paoloni and A. Onorati LDR



(Civil Society Organizations’5 representatives in the Committee on World FoodSecurity6).

This article was inspired and written on the basis of published and unpub-lished documents elaborated by CFS officials and CSOs representatives duringthis drafting process. Since the whole process ended quite recently, the literatureon this subject is not very extensive. It is necessary to underline that the authorsof the present article are involved in the drafting process of the VGGT, conse-quently some of their opinions and statements are influenced by their engage-ment in this process.

As is well known, large-scale land acquisitions have become one of severalfactors that bring significant change to world farmland use. New forms ofgrabbing, concentration, commodification and privatization of land are shapingthe agrarian systems. These forms of “global land rush” constitute the phenom-enon of land grabbing, which, according to the authoritative definitions ofOlivier 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 throughdeals often negotiated between host governments and foreign investors with little or noparticipation from the local communities who depend on access to those lands for theirlivelihoods. 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 andfollowing up policies concerning world food security. “The Committee on World Food Securityis a UN committee that brings together not only member states but also civil society, the privatesector, research networks, other UN bodies and philanthropic organizations in the foremostinternational platform for work toward the elimination of hunger and ensuring food securityand nutrition for everyone. It had existed for a long time as a committee within the UN Foodand Agriculture Organization (FAO), but it was reformed following the global food price crisis,which highlighted the need for improved coordination and governance within the internationalfood system. The CFS now links the member countries of FAO, the International Fund forAgricultural Development (IFAD) and the World Food Program (WFP) and reports to the UNEconomic and Social Council (ECOSOC). Other UN and other intergovernmental bodies, such asthe Standing Committee on Nutrition, the High Level Task Force on the Global Food SecurityCrisis and the World Bank participate in the CFS. Physically the CFS is based in Rome, in theoffices of FAO. Since its reform in 2009, the CFS has agreed Voluntary Guidelines on land tenureand a Global Strategic Framework for Food Security and Nutrition along with work on the foodsecurity implications of price volatility, climate change, social protection systems and biofuels.As well as the current negotiations on responsible agricultural investment principles, the CFS isalso 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 Investmentsin Farmland, 38 The Journal of Peasant Studies, no. 2 (2011), 249–279.

LDR Regulations of Large-Scale Acquisitions of Land 371



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

The first major description of land grabbing was detailed by the non-governmental organization GRAIN9 in a 2008 publication10 where it is reportedhow agribusiness development constitutes the prime objective behind landdeals, despite the “win–win” rhetoric of governments and investors that pro-mote such agreements as development opportunities for land-selling states.

This phenomenon, increasingly widespread in the Global South, jeopardizes theland tenure11 of those who use the land not only as a source of nourishment forthemselves but also to pursue food sovereignty and to contribute to national foodsecurity. Land grabbing is organized by businessmen – often with public policy sup-port – and governments who aim to produce energy and food supply for internal orglobal market or to use land for speculative purposes, expecting a rise in the futurevalueof landandrelatednatural resources (water,biodiversity,minerals, energy,etc.).

Indeed, each State must strengthen its responsibility for control measures toavoid land acquisition by economic actors who are not interested in agriculturebut only in the mere profits derived from the land rent. In this framework, theland is regarded as another commodity, while both food security and people’ssovereignty 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 farmersand social movements in their struggles for community-controlled and biodiversity-based foodsystems: <http://www.grain.org>.10 GRAIN, Seized! The 2008 Landgrab for Food and Financial Security, available at: <http://www.grain.org/article/entries/93-seized-the-2008-landgrab-for-food-and-financial-security>.11 According to European Commission (EC), EU Land Policy Guidelines (Brussels, 2004), avail-able at: <http://ec.europa.eu/development/icenter/repository/EU_Land_Guidelines_Final_12_2004_en.pdf>, land tenure should be defined broadly as the “system of access to and controlover land and related resources”. It determines the rules and rights that govern the appropria-tion, cultivation and use of natural resources on a given space or piece of land. However, it isnot land itself that is owned, but the rights and duties relating to it. The rights and duties heldby individuals or families are themselves embedded in a set of rules and norms, defined andenforced by authorities and institutions that may be those of rural communities and/or of thestate.12 “The importance of land use when large tracts are acquired to produce industrial crops forexport is one such process that often combines with new sorts of actors brokering new practicesand global relationships” N.L. Peluso and C. Lund, New Frontiers of Land Control: Introduction,38 The Journal of Peasant Studies, no. 4 (2011), 669.




There are two main issues that are addressed in this article. The first one ishow 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 onlyto be seen as a traditionally productive asset13 but also as a natural resource, aspecial “commons”14 of the food producers comprised many diverse interests forits use, and a territory which people have traditionally owned, occupied orotherwise used or acquired and which they have the right to own or use, developand control.15

The second issue is the involvement of rural social movements and otherCSOs in the negotiation process of the VGGT,16 as a new reference to improve thegovernance of tenure of land, fisheries and forests at national and global levels.This engagement is an unprecedented effort in influencing governments toestablish guidelines to gain greater access to land resources at the globalscale. In the present context, such engagement must be considered truly inno-vative, because it represents the first attempt made on the basis of a participa-tory approach “bottom-up”.17

This article consists of seven sections. Section 2 examines some profilesrelated to the land grabbing phenomenon and the threat to food security andsovereignty triggered by the different and distorted utilization of farmland inevery part of the planet. Section 3 describes the background of the debate withinFAO 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 asthe totality of natural resources in a given area, a lawyer might focus on boundaries and themineral 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. Inthe context of an increasingly globalized world, land rights are paramount – particularly in theGlobal South (Asia, South America, Africa and Australia). And as governments and multi-national corporations buy up land, small farmers and indigenous groups are finding themselvesedged out” (A.M. Coleman, The Great Land Rush, available at: <http://farmlandgrab.org>, 13September 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. Whythe Ownership of the Commons Matters in Making and Keeping Peace, 2008, 1, <http://www.rightsandresources.org/documents/files/doc_853.pdf>.15 This definition refers to the Article 26 of United Nations Declaration on the Rights ofIndigenous 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 inOctober 2010, Rome, FAO.17 A. Tal and J.A. Cohen, Bringing “top-down” to “bottom-up”: a new role for environmentallegislation in combating desertification, 31 Harvard Environmental Law Review no. 1 (2007),164–217.




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 thephenomenon of land grabbing

Within a few years, acquisition of foreign farmland has become an issue withplenty of explosive potential for the environment and security in most regions ofthe planet.

Large-scale land investments can create opportunities for development,because of their capability to generate infrastructures and employment, increasepublic revenues and improve farmer’s access to technologies and credit.18

According to O. De Schutter “Large-scale acquisitions and leases are one ofthe key new trends that emerged out of the 2008 global food crisis. Some majorfood importing capital exporting countries have indeed lost confidence in globalmarkets 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 andprivate investors have been securing land abroad to use it for agriculture.20 Onthe basis of an estimate from IFPRI,21 since 2006, between 15 and 20 millionhectares of farmland in developing countries have been subject in transactionsor 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 measuresto address the human rights challenge, 2009, available at: <http://vorige.nrc.nl/multimedia/archive>.20 M. Kugelman, “The global farmland rush”, New York Times, 5 February 2013. He alsoasserts: “Poor governments have embraced these deals, but their people are in danger of losingtheir patrimony, not to mention their sources of food.....The commoditization of global agricul-ture has aggravated the destabilizing effects of these large-scale land grabs. Investors typicallypromise to create local jobs and say that better farming technologies will produce higher cropyields and improve food security”.21 The International Food Policy Research Institute (IFPRI) seeks sustainable solutions forending hunger and poverty.22 OXFAM, ‘Our Land, Our Lives’. Time out on the global land rush (2012) available at: <http://www.oxfam.org>. OXFAM is an international confederation of 17 organizations net workedtogether in 92 countries, as part of a global movement for change, to build a future free fromthe injustice of poverty. More useful data for understanding the evolution of the phenomenon




data: land equivalent to eight times the size of Britain was sold or leasedworldwide in the last ten years.

A study by the World Bank23 shows that 45 million hectares of farmlandworldwide were sold or leased in 2009 alone. Seventy percent of these landdeals were concentrated in Mali, Libya, Sudan, Ethiopia, Madagascar andMozambique. In the last four years alone, international investors and govern-ment 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 arableland. 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 majorland 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. Oneof 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 burningof all land titles), and the Brazilian government has shown its openness to greater foreigninvestment in rural land.24

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

are present on the site of The Land Matrix: <http://www.landmatrix.org>. The Land Matrix is aglobal and independent land monitoring initiative. Its goal is to facilitate an open developmentcommunity of citizens, researchers, policy makers and technology specialists to promotetransparency and accountability in decisions over land and investment.23 World Bank, Rising Global Interest in Farmland. Can it Yield Sustainable and EquitableBenefits? (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-ledWorld Agricultural Census, it is also larger than the average land holding in all but threedeveloping countries” (OXFAM, “Our Land, Our Lives”. Time Out on the Global Land Rush (2012),available at: <http://www.oxfam.org>).26 ILC, Tirana Declaration: Securing Land Access for the Poor in Times of Intensified NaturalResources Competition (Rome, 2011), available at: <www.landcoalition.org/about us/aom2011/Tiranadeclaration>. This Declaration was endorsed by the ILC Assembly of Members on 27 May2011.




– 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 refuseconsent 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 onemployment and benefit-sharing;

– eschew democratic planning, independent oversight and meaningfulparticipation.

Borras28 argues that

The phrase “global land grab” has become a catch-all to describe and analyze the currentexplosion of large scale (trans)national commercial land transactions. Around the world,there have been strong reactions from states, corporations, and civil society groups. Somesee land grabs as a major threat to the lives and livelihoods of the rural poor, and sooppose 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 improvingland market governance. Of course, between these two positions is a range of intermediateviews offered by other groups.

Land grabbing – even in the absence of forced evictions – denies land for localcommunities,29 destroys livelihoods, reduces the political space for peasant-oriented agricultural policies and distorts markets toward increasingly

27 See the recent UN-REDD PROGRAMME, Guidelines on Free, Prior and Informed Consent(2011), available at: <www.un-redd.org>. The definitions build on the elements of a commonunderstanding of FPIC endorsed by the UNPFII at its Fourth Session in 2005: Free refers to aconsent 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 beprovided prior to seeking consent and also as part of the ongoing consent process; Consentrefers to the collective decision made by the rights-holders and reached through the customarydecision-making processes of the affected peoples or communities. Consent must be sought andgranted or withheld according to the unique formal or informal political-administrative dynamicof each community.28 S. Borras Jr., R. Hall, I. Scoones, B. White, and W. Wolford, Towards a Better Understandingof 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 commu-nities 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, resettledcommunities, older women, widowed women and orphaned girls, nomadic pastoralists and




concentrated agribusiness interests and global trade rather than toward sustain-able small-scale production for local and national markets. Land grabbing willaccelerate ecosystem destruction and the climate crisis because of the type ofmonoculture-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 inAsia, Africa, the Americas and Europe for industrial agriculture, mining, infra-structure projects, dams, tourism, conservation parks, industry, urban expan-sion and military purpose.31 Even market-based solutions to climate change (likevast biofuel plantations, forest carbon offset projects and production reconver-sion initiatives) are ensuring local communities alienation from their lands andnatural resources.

According to McMichael’s authoritative analysis32

The so-called “global land grab” continues the historic process of landenclosures described by Sir Thomas More in Utopia as “sheep eating men”,when English peasants were evicted from the commons to make room for privateestates. Colonialism extended the enclosure movement as lands and habitatswere commandeered for export monocultures and/or settled by colonists at theexpense 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” delleterre 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 Networkshows how land grabbing and access to land are a critical issue today in Europe: LandConcentration, Land Grabbing and People’s Struggles in Europe (April 2013), available at:<http://www.eurovia.org/IMG/pdf/Land_in_Europe.pdf>. Another useful reference isAPRODEV, Policy Brief: The Role of European Development Finance Institutions in Land Grabs(May 2013), available at: <www.aprodev.eu>.32 P. McMichael, Interpreting the Land Grab, Transnational Institute (2011), available at:<http://www.tni.org>. Furthermore he argues “That land grab is not new, and it is not a singlephenomenon. It has multiple dimensions. It is the medium through which development agen-cies can renew their legitimacy via land “improvement” with codes of conduct ostensibly toprotect inhabitants but practically to protect investments. It contributes to the investmentportfolio of finance capital, restoring profits even as capitalism enters a profound crisis ofpolitical legitimacy, and energy and environmental limits. The land grab includes plans toincorporate southern peasants into the World Bank’s new initiative of “agriculture for develop-ment.” And it serves revenue interests of host states and the security interests of investingstates-anticipating food, water and fuel shortages”.




century development era as new states sought to secure national territory andexport revenues. The subsequent neoliberal project of global development inten-sified market-driven enclosure for mineral and agro-exporting as indebted statessubmitted 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 hasbecome the object of speculative investment and a hedge against food andfuel supply shortfalls.

For many investors, farmland acquisition – either through purchase orlease – offers a chance to profit from rising agricultural commodity prices.Such investors take a direct interest in farm production, typically on largeplantation-like operations, with an eye to profiting from high prices for food,fiber and biofuel crops. Rising food prices have also encouraged governments ofcountries such as Saudi Arabia, South Korea and Egypt to lease huge tracts ofland, mostly in Africa, as a means of securing food for their own populations.Producing food offshore allows capital-rich but land-poor countries to bypassvolatile global food markets and guard against food riots and related politicalinstability.33

Still other investors buy farmland as a form of speculative investment inrising global land prices. By leasing the land to individual or corporate farmers,investors gain a regular income stream on top of appreciating land values. Theseinvestors also acquire farmland as a low-risk hedge against inflation and otherside effects of the global financial crisis. As with the rush to buy gold, farmlandinvestment is seen as a safe harbor in stormy financial seas.

In this framework, land is viewed by the market as a tradable commodityand a good refuge for excess capital. Investors, in effect, buy land at low pricesand then sell them at high prices when the recession is over. This has led to arush 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 ofExperts on Food Security and Nutrition of the Committee on World Food Security (Rome, 2011)available at: <http://www.fao.org/fileadmin/user_upload/hlpe/hlpe_documents/HLPE-Land-tenure-and-international-investments-in-agriculture-2011.pdf>. The goal of the HLPE (HighLevel Panel of Experts) is to ensure the regular inclusion of advice based on scientific evidenceand knowledge. It will also provide scientific and knowledge-based analysis and advice onpolicy-relevant issues and identify emerging trends. It will also help prioritize future actionsand focus attention on key focal areas.




report on the subject,34 the World Bank welcomes these developments as asource of much-needed investments in global agriculture and a way to bringnew infrastructure, technological improvements and jobs to target countries.Some critics, on contrast, have denounced the deals as resource grabs thatdispossess small-scale farmers and indigenous peoples, threaten food sover-eignty and further degrade agro-ecosystems.35 These concerns are compoundedby the fact that the mechanisms whereby these deals are negotiated, monitoredand 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 toland by small-scale food producers has been the subject of peasant movementsand civil society groups for decades. Starting in the nineties, several meetings tookplace to debate this issue and to carry on political initiatives for rural developmentand distribution of land. In this framework, the IPC, through its team activelyinvolved in land question, in collaborationwith Via Campesina’s Global Campaignfor Agrarian Reform,36 reacted to FAO’s technical document on land conflicts.Resistance against land grabbing and the World Bank’s position gained momen-tum, while the World Bank pursuant to general Principle of ResponsibleAgricultural Investments37 tried to prevent such protests.

34 World Bank, Rising Global Interest in Farmland. Can it Yield Sustainable and EquitableBenefits? (Washington, DC, 2011).35 E. Holt-Giménez, Land Grabs vs. Land Sovereignty, available at: <http://www.foodfirst.org>.This paper has also explained the meaning of Land sovereignty as “the right of communitiesand peoples to sustainable, land-based livelihoods; their right to have a democratic say in itsuse and an equitable share in the stream of social, environmental and economic benefits of theland where they live”.36 S. Borras Jr., La Vía Campesina and its Global Campaign for Agrarian Reform, 8 Journal ofAgrarian Change, nos. 2 and 3 (2008), 258–289. La Vía Campesina has evolved as an interna-tional 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 andResources’ proposed by the Food and Agriculture Organization of the United Nations (FAO),the International Fund for Agricultural Development (IFAD), the United Nations Conference onTrade and Development (UNCTAD), and the World Bank Group. Currently, the principlesproposed are that: (1) existing rights to land and associated natural resources are recognized




In the meantime, the FAO-CFS was reformed and changed into an institutionfostering global governance of food security policies. In this new role, the CFSwas called to adopt decisions on access to land for small food producers and tobuild a link between food security and access to necessary resources to producefood. This is the cornerstone of food sovereignty strategy.

To engage governments’ responsibility to elaborate a “soft law” tool, inter-governmental negotiations were necessary. So, an Intergovernmental WorkingGroup38 was established and governments jointly negotiated in the CFS with itsnew rules. In 2010, the IGWG started its work. Meanwhile, intensive consultationswere conducted by CSOs and social movements in many countries. Their delibera-tions 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 differentGuidelines on land tenure40 proposalswere elaborated at the same time by FAO (asan intergovernmental technical body) and civil society. During IGWG’s first meet-ing, FAO’s draft of the Guidelines was accepted as a negotiation basis, while thecivil society’s Guidelines would have been used as a counter-proposal duringgovernments’ 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 andregulatory environment; (4) all those materially affected are consulted and agreements fromconsultations are recorded and enforced; (5) projects are economically viable, respect the rule oflaw, reflect industry best practice, and result in durable shared value; (6) investments generatedesirable social and distributional impacts and do not increase vulnerability; (7) environmentalimpacts are quantified and measures are taken to encourage sustainable resource use whileminimizing and mitigating negative impacts” (p. 254). As specified by the author “ThesePrinciples, often referred to as the ‘RAI (responsible agricultural investment) Principles’, werereleased initially on 25 January 2010. They were subsequently presented at the annual meetingof the World Bank held in Washington, DC, on 25–27 April 2010, and at a side-event to the High-level segment of the 65th General Assembly of the United Nations, on 24 September 2010” (note4, p. 254).38 Intergovernmental Working Group (IGWG) is a subsidiary body of the Committee on WorldFood Security (CFS), with the mandate to elaborate, with the participation of stakeholders andwithin a period of two years, a set of voluntary guidelines to support Members in the progres-sive realization of the right to adequate food (from the Report of the 123rd Session of the FAOCouncil-Rome, 28 October–1 November 2002, <ftp://ftp.fao.org/unfao/bodies/rtf/Y8854e.doc>).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 ResourcesTenure (FIAN International, Heidelberg, 2011) available at: <http://www.foodsovereignty.org/CoreIssues/AgrarianReformandTerritory/VGforLandandNaturalResourceTenure.aspx>.40 About these two different proposals, ibid.




organizations and other CSOs. The presence of small food producers and CSOs, asactive and equal participants in the negotiation process, was crucial to get theagreements to have a real impact. To properly prepare the negotiations, CFSmember States asked the High Level Panel of Experts (HLPE) of the CFS to expresstheir view. The HLPE has clearly stated, in its second report,41 that large-scaleinvestment in land is “damaging food security, incomes, livelihoods and environ-ment for local people”. The HLPE called on governments to: recognize the right toFPIC in relation to the land and natural resources on which they depend for theirlivelihoods; secure access and use of lands for peasants, pastoralists, forest dwell-ers, fisher folk and indigenous peoples; undertake redistributive land policies insettings marked by inequality in land control and ownership; abolish targets andsubsidies on biofuels; prioritize investment in the small farm sector and in alter-native food systems that are socially inclusive as well as environmentally sustain-able, using agro-ecological principles.

3.2 The human rights as the basis of the VGGT

During the consultation process, the representatives of civil society, privatesector, government institutions, academia and UN agencies attempted to definethe principles that could lay the foundations of the VGGT. The declared aim ofVGGT is to achieve “food security for all and support the progressive realizationof the right to adequate food in the context of national food security” and topromote “responsible governance of tenure of land, fisheries and forests, withrespect to all forms of tenure: public, private, communal, indigenous, custom-ary, and informal”.42 These overall objectives are pursued relying on the funda-mental human rights disciplined by several international conventions.

The basic Convention 169 (particularly art. 13–16) on Indigenous and TribalPeoples (1989) of the International Labor Organization (ILO) and the Conventionon the Elimination of all forms of Discrimination Against Women (CEDAW,particularly art. 14) of the UN General Assembly (1979) contain explicit refer-ences to land rights.43

41 HLPE (2011), supra note 33.42 In these terms see: <http://www.fao.org/nr/tenure/voluntary-guidelines/>.43 Conventions and treaties addressing these rights included the Universal Declaration ofHuman Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights(ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the four GenevaConventions and their two additional Protocols, the Convention on the Rights of the Child, theInternational Convention on the Elimination of all forms of Racial Discrimination (ICERD), theConvention on Biological Diversity, the Core Labor Standards of the ILO, the International




Voluntary or not, the VGGT are in fact rooted on international human rightsdirectly or indirectly relevant in terms of access to and control over land, water,fisheries and forests. Moreover, rights to land, water and other natural resourcesare intimately connected to numerous economic, social and cultural rights, suchas the right to adequate food, housing, health and work. Therefore, the VGGT asan international agreement must ensure the right of language comprehension toall the stakeholders when they introduce human rights concepts and to remindgovernments of their obligations in this regard.

Access to water for drinking, food production and livestock tending, as wellas to fisheries and forests for local populations, is absolutely crucial in the questfor hunger eradication. Furthermore, the use of land for productive purposescannot be separated from the use of water (which should be considered to all theeffects a natural resource) as investment in land is directly linked to the avail-ability of water.

The VGGT are based on a holistic approach that implies the acknowledg-ment of natural commons,44 their significance for the food and livelihoodsecurity of local users and communities,45 and their role in the conservation ofterrestrial and aquatic biodiversity. The natural commons comprise farm/croplands, wetlands, forests, woodlots, open pasture, grazing and range-lands, hilland mountain slopes, streams and rivers, ponds, lakes and other fresh water

Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and the United NationsDeclaration on the Rights of Indigenous Peoples (UNDRIP). Likewise, all regional human rightstreaties such as the European Convention on Human Rights, the American Convention onHuman Rights, the African Charter on Human and People’s Rights, and the Arab Charter ofHuman Rights must shape the normative framework of the mentioned Guidelines. All thesetreaties and conventions are binding for ratifying States, which are required to incorporate theirprovisions 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 andservices, knowledge, and political commons such as democracy. Its nurturance remains theresponsibility of everyone for the survival of the planet in the present and for the future. Thisnurturance is rooted in the respect of all living cultures, values, and traditions that sustain thecommons. And therefore, this responsibility calls for democratic governance and sustainable,inclusive, community stewardship. Every state must recognize communities’ right to self-gov-ernance 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 thecommons and support of community stewardship, including recognizing of customary institu-tions 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 whichthese 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 regardingthe rights of land users.




bodies, fishing grounds, seas and oceans, coastlines, minerals, seeds and ter-restrial and aquatic biodiversity. In every part of the world, agricultural, forest,fishing, coastal, pastoral, nomadic and indigenous communities have developedsophisticated systems of using, sharing, governing and regenerating their nat-ural commons. These systems, often rooted in collective rights,46 have to berespected. They are essential dimensions of the cultural–political identities ofindividuals and communities, and decisive to their very survival.47 States arealso required by human rights conventions to ensure that women have equalaccess to and control over all natural resources through collective or individualtenure systems.

The VGGT clearly distinguish the respective roles of the State, the privatesector and civil society, with special attention to the accountability of businessenterprises. In that perspective, the Guidelines deal with issues of abuse bypowerful non-state actors and the responsibilities of Transnational Companies(TNCs) and other enterprises. They emphasize States’ obligations to properlyregulate the activities of TNCs and other commercial entities in order to preventnegative impacts on the realization and enjoyment of human rights related toland and other natural resources by workers, nomadic pastoralists/herders,artisanal and small-scale fisherfolks, indigenous peoples and peasants. TheGuidelines also encourage the establishment of effective mechanisms thatmake TNCs and businesses legally accountable for losses and damages arisingfrom violations and/or crimes they commit locally or internationally.

The VGGT address the need for coherent spatial planning in terms of pro-poor and sustainable development. Spatial planning links national, regional andlocal land use planning and also combines different land uses such as infra-structure development, settlement, agriculture, water catchment protection,environmental protection and natural habitats. In the Guidelines, spatial plan-ning must reflect the overall objectives of ecosystems protection, climate changemitigation (as well as adaptation to global warming) and so must explicitly aimto prioritize the needs of rural poor populations to negative impacts of incoher-ent spatial planning.

The VGGT include provisions calling for policy coherence of all relevantpolicies 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).




that perspective, current policies48 that undermine this access should be prop-erly reformed, following a process that involves the active consultation andparticipation of local communities. These policies include notably large-scalebiofuels production, large-scale mining and energy production like exploitationof water resources for energy, tourism and development projects and unsustain-able programs of carbon sequestration, which are some of the main factors thathave contributed to the recent increase of the phenomenon of land grabbing inthe context of the financial, food, climate and energy crises.

Without a strong system of monitoring and evaluation, the VGGT will notachieve their objectives. The establishment of independent national and multi-actor bodies to observe compliance should be encouraged. Regional and inter-national institutions, especially International Financial Institutions (IFIs), mustbe required to incorporate the Guidelines in their operational policies anddirectives as a means to avoid supporting private or public projects, programsor measures that violate human rights.

The VGGT should integrate strong provisions to promote their efficientimplementation through participatory and transparent approaches at nationallevel, as an integral component of States’ national strategies for the progressiverealization of the Right to Food in order to improve consistency with theVoluntary 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 bypublic 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 theHigh Level Panel of Experts on Food Security and Nutrition of the Committee on World FoodSecurity (Rome, 2013), available at: <http://www.fao.org/fileadmin/user_upload/hlpe/hlpe_do-cuments/HLPE_Reports/HLPE-Report-5_Biofuels_and_food_security.pdf>.49 Voluntary Guidelines, to support the progressive realization of the right to adequate food inthe context of national food security, were adopted by the 127th Session of the FAO Council,November 2004. The complete text is available at: <http://www.fao.org>. About the some issuesof Right to Food, see the recent analysis in L. Colombo and A. Onorati, Food. Riots and Rights(London: IIED, 2013).




version of the Guidelines was prepared through intergovernmental negotiationsled by CFS.

As evinced from the above-mentioned framework, land grabbing is a crucialissue in the VGGT document. It was recognized that states have an importantresponsibility in this regard. By addressing the means for solving tenure dis-putes, ensuring judicial protection of tenure rights, the VGGT are essential forthose whose tenure rights are violated. The aim is to protect local communitiesfrom land investments and fisheries and forest transactions that undermine theirsecure access to and control over land, fisheries and forests.50

First and foremost investments need to be encouraged by all CFS memberStates in order to strengthen tenure of small-scale food producers, with parti-cular regard to women. Financial investments and human and scientificresources should be placed before by each State in order to assist smallholders,increase production, achieve the necessary scale to access local and regionalmarkets, 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 precau-tionary principle and for the adequate safeguards on investments or othertransactions, included the conversion of land, fisheries and forests used bylocal communities, families and individuals. A particular emphasis should beput on states’ responsibility to regulate investments, to ensure that they respecthuman 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 rightsand tenure governance systems of indigenous peoples and other customarycommunities that very often are not complied with. Many publicly ownedlands, fisheries and forests are collectively used and governed as commons.Accessible to everyone, such commons are fundamental for the food and thelivelihood security of local users and communities. They are essential to theircultural–political identities. It is vital that states recognize, restore and respectsuch commons and their related systems of governance.

Each State should properly ensure the implementation of the Guidelines inorder to enable the monitoring and improving of governance of tenure.

50 Farely Boly, Secretary general of Sexagon, a peasant organization in Mali, affirms: “Theproblem is obvious. Agribusiness projects such as the ones comprising thousands of hectares inthe Office du Niger, Mali, do great harm and are profoundly illegitimate. We call on parliamentsand national governments to immediately cease all massive land grabs current or future andreturn the plundered land.”, available at: <http://www.grain.org/article/entries/4062-turning-african-farmland-over-to-big-business>.




Furthermore, states’ responsibility should ensure the promotion and the imple-mentation of the Guidelines in accordance with human rights norms and stan-dards and as part of their efforts to realize the Right to Food. Other importanttasks are: to build appropriate and inclusive platforms of dialogue at local,national, regional and global level in order to promote the implementation inkeeping with the Final Declaration on the Convention on Agrarian Reform andRural Development (ICARRD); to establish monitoring and accountabilitymechanisms through participatory and transparent approaches that include allrelevant actors, with particular regard to women, affected constituencies andtheir organizations; to allocate sufficient resources to all relevant policies andprograms; to ask for coherence of all policies having direct or indirect impact onaccess to land and other natural resources, including biofuels, climate mitiga-tion, trade and investment support policies; to call on CFS to periodicallymonitor governance of tenure and to review the relevance and effectiveness ofthe VGGT.

4.2 Access and control of natural resources

In the VGGT final document, it is possible to identify the elements that are mostuseful for social struggles in defense of access and control of natural resourcesfor food production.

Part 1 of the document (Preliminary) shows how the VGGT seek to improvegovernance of tenure of land, fisheries and forests. They do this for the benefit ofall, with an emphasis on vulnerable andmarginalized people, with the goals of foodsecurity and progressive realization of the right to adequate food, poverty eradica-tion, sustainable livelihoods, social stability, housing security, rural developmentand environmental protection. All programs, policies and technical assistance of theVGGT 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 businessenterprises, have the responsibility to respect human rights and legitimatetenure rights. Host states and home states of transnational corporations havethe obligation to assure that no abuses of human rights and legitimate tenurerights take place. Some important principles of implementation as human dig-nity, non-discrimination, equity and justice, gender equality, holistic and sus-tainable approach with regard to the management of natural resources,consultation and participation are set too. They clearly state that the tenure ofland, fisheries and forests is not a business matter but a fundamental right thatmust be recognized, respected and guaranteed.




Among other principles of implementation (transparency, accountabilityand continuous improvement), the VGGT introduce the rule of law, or rather,a rule-based approach through laws that is widely publicized, equallyenforced and independently adjudicated and that is consistent with its exist-ing obligations under national and international law. Moreover, this part ofthe document emphasizes, with detailed provisions, a strong genderapproach and strengthens the human rights standards about gender equalityapplied to the field of tenure.

The principle of consultation and participation, eventually, establishes ageneral standard on a particularly relevant issue for non-indigenous groups, asindigenous peoples already have the principle of FPIC recognized in the UNDeclaration on the Rights of Indigenous Peoples. Also tenure governance plays acrucial role. The VGGT indicate how states – in accordance with nationallegislation – should ensure a policy of respect and recognize legitimate tenurerights, including legitimate customary tenure rights that are not currently pro-tected by law. Legal and organizational frameworks for tenure governanceshould reflect the social, cultural, economic and environmental significance ofland, fisheries and forests, the interconnected relationships between land, fish-eries and forests (and their uses) and establish an integrated approach to theiradministration.

Part 3 (Legal recognition and allocation of tenure rights and duties)shows how states should recognize and protect publicly owned land, fisheriesand forests and their related systems of collective use and management ofwhat in some national contexts referred to as commons. Local communitiesthat have traditionally used the land, fisheries and forests should receive dueconsideration in the reallocation of tenure rights. Policies should takeinto account the tenure rights of others and anyone who could be affectedshould be included in the consultation, participation and decision-makingprocesses.

At this stage, the document focuses on informal tenure. States shouldensure that all actions regarding informal tenure are consistent with theirexisting obligations under national and international law and with dueregard to voluntary commitments under applicable regional and internationalinstruments. Subsequently, the document devotes particular attention to thesituation of indigenous peoples and other communities with customarytenure systems, with special regard to the social, cultural, spiritual, eco-nomic, environmental and political value that land, fisheries and forestsencase. Communities should be assisted – where necessary – to increasethe capacity of their members to fully participate in decision-making andgovernance of their tenure systems in order to promote and provide




equitable, secure and sustainable rights to their self-governed resources.Effective participation of all community members (including the vulnerableand marginalized ones) should be promoted through their local or traditionalinstitutions in decisions regarding their tenure systems, including the case ofcollective tenure systems. Before any project gets started or before adoptingand implementing legislative or administrative measures affecting theresources for which the communities hold rights, states and other partiesshould consult with indigenous peoples through their own representativeinstitutions in an effective and meaningful way, in order to obtain their FPIC.

They should moreover provide appropriate recognition and protection of thelegitimate tenure rights of indigenous peoples and other communities withcustomary tenure systems and endeavor to prevent corruption. Such recognitionshould take into account the land, fisheries and forests that are used exclusivelyby a community and those that are shared. Information about this recognitionshould be publicized in accessible locations and in understandable and applic-able languages. Where indigenous peoples and other communities with custom-ary tenure systems have legitimate tenure rights to the ancestral lands on whichthey live, states should recognize and protect these rights preventing the inha-bitants from being forcibly evicted.

States should protect indigenous peoples and other communities with cus-tomary tenure systems against the unauthorized use of their land, fisheries andforests. Where a community does not object, states should assist to formallydocument and publicize information on the nature and location of land, fish-eries and forests used and controlled by the community.

Where tenure rights are formally documented, they should be recorded withother public, private and communal tenure rights to prevent competing claims.States should respect customary approaches to resolve tenure conflicts withincommunities for land, fisheries and forests that are used by more than onecommunity, with the effort to strengthen or develop means of solving conflictsbetween communities. State and non-state actors should finally strive to providetechnical and legal assistance to affected communities to participate in thedevelopment of tenure policies, laws and projects.

Part 4 (Transfers and other changes to tenure rights and duties) is strictlyconnected with the above-mentioned indigenous peoples and other commu-nities with customary tenure systems issue. This section points out how stateshave the duty to protect local communities, indigenous peoples and vulnerablegroups from land speculation and land concentration and how they are respon-sible to regulate land markets to protect social, cultural and environmentalvalues highlighting the importance of small-scale producers for national foodsecurity and social stability.




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 transna-tional framework on land tenure and rights issues. Although there is no reasonto assume that future global land governance will certainly develop along thisdirection,51 it has been authoritatively affirmed that “[d]ue to the way it wasestablished, its scope and substance, the Voluntary Guidelines currently offersthe 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 bygovernments and civil society according to an unprecedented process of con-sultation and negotiation. It was then unanimously adopted by the CFS SpecialSession of 11 May 2012. The VGGT have a legal and negotiated nature with globalvalidity; they are clearly not a technical document. In order to reach consensusduring the drafting process, it has at times been kept quite general and ambig-uous aiming to accommodate conflicting views. For these reasons the documentshows some limitations.

5.1 Water and natural resources

Getting to the heart of the matter, a manifest limitation of the VGGT is the factthat they do not cover water. The preface in VGGT briefly mentions that Statesmay take the VGGT into account in the responsible governance of other naturalresources inextricably related to land, fisheries and forests, such as water andmineral resources. However, leaving out of the document the water matter maybe considered a serious omission.

Furthermore, the VGGT apply only to the issue of tenure and not to the useand management of natural resources. Certainly, tenure and use can be con-sidered two different subjects; from the legal point of view, however, these twodimensions 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: CriticalPerspectives, 10 Globalizations, no. 1 (2013), 1–23.52 In this sense see J. von Bernstorff, The Problem of “Land Grabbing”, extract from J. vonBernstorff, Das Problem des “Land Grabbing” und die UN-Voluntary Guidelines on theResponsible Governance of Tenure of Land, Fisheries and Forests in the Context of National FoodSecurity (2012), available at: <http://www.jura.uni-tuebingen.de/professoren_und_dozenten/vonbernstorff/projekte/das-problem-des-201cland-grabbing201d-und-die-un-voluntary-guidelines-on-the-responsible-governance-of-tenure-of-land-fisheries-and-forests-in-the-context-of-national-food-security>.




and control of natural resources by small-scale food producers are connected tothe issue of governance of land use and management. Regrettably, these lasttopics 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 beextended to non-indigenous social groups. CSOs defended its extension to allgroups whose livelihoods depend on land, fisheries and forests. Nevertheless ageneral 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 containsseveral safeguards to control this eventuality and its impacts. Unfortunately,CSOs’ proposal to put a ban on land grabbing was not accepted in the latestversion of the document. However, the safeguards featured in several sections ofthe final and official document could be tactically used at local/national levelsto organize resistance.

5.3 Interpretation

Another controversial issue is that the VGGT might be interpreted in differentways by different actors. For instance, when implementing the VGGT, eachgovernment and bilateral or international agency might find in the text usefulreferences in order to create an agenda focusing on economic growth, landmarkets promotion and benefit of commercial interests. It was not possible toget the states to equally accept the creation of a strong mechanism to monitorthe policies and actions of governments and international organizations with animpact 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 membercountries. The Advisory Group is made up of representatives from the five different categories ofCFS Participants. These are: UN agencies and other UN bodies; Civil society and non-govern-mental organizations particularly organizations representing smallholder family farmers, fish-erfolks, herders, landless, urban poor, agricultural and food workers, women, youth, consumersand indigenous people; International agricultural research institutions; International and regio-nal financial institutions such as the World Bank, the International Monetary Fund, regionaldevelopment banks and the World Trade Organization; Private sector associations and philan-thropic foundations. The Advisory Group helps the Bureau advance the Committee’s objectives




should report to CFS on the progress of the implementation of the VGGT, as wellas evaluate their impact and their contribution to the improvement of tenuregovernance.

5.4 Codes of conduct

There are different points of view about the limitations of the VGGT. Both theVGGT and the PRAI (Principles for Responsible Agricultural Investment55) areoften qualified as “codes of conduct” (i.e. non-binding rules addressed to thestates who can follow them or not) because of their feature and functions. Beingboth “codes of conduct”, however, does not imply that they are identifiable, astheir intrinsic nature is different.

According to Mulleta’s opinion56 both the VGGT and the PRAI “do not giverise to enforceable rights and responsibilities on actors involved in land deals”.Furthermore the scholar sustains that the practicability of most of the policyprescriptions is limited, as the VGGT and the PRAI are suggested by their top-down or state-centric disposition. Again Mulleta affirms – not quite realisticallyin our opinion – the necessity to enhance “the voice/agency power of the localpoor as well as changing the existing socio-institutional power asymmetries, sothat 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 andthe PRAI is questionable because it can lead, for instance, to active involvementof states in the invisibilization of local claims and facilitation of land dealsfurther undermining the creditability of a state-centered regulatory regime indealing with problems of land matters. Moreover, these contested principles arenot based on human rights law and say nothing about accountability or bindinglegal instruments, being envisaged purely as intended for corporateself-regulation.

in particular to ensure linkages with different stakeholders at regional, sub-regional and locallevels 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 Large-Scale Land Transfer (2012), available at: <http://farmlandgrab.org/uploads/attachment/farris_fantu_agter_2012.pdf>.57 Ibid.




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 govern-ance instrument – are not mandatory. The VGGT are a significant tool of “softlaw” 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 internationalagreement concluded between States in written form and governed by internationallaw…” [Art. 2(1)(a)]. In contrast, declarations, resolutions and other non-binding instru-ments may encompass strong political commitments or moral obligations, even thoughthey are not legally binding. Non-binding instruments may serve the parties to a treaty toauthoritatively interpret its terms, resolving any ambiguities that may exist. A non-bindinginstrument 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 arealready bound by provisions of international law, insofar as the VoluntaryGuidelines provide interpretation of such legal norms and guidance for theirimplementation”.

The “soft laws”, or lex ferenda instruments, which include declarations,basic principles, general observations, and so on, represent international com-mitments that are based on foregoing treaties and the world’s major legalsystems. Among these, the above-mentioned UN Declaration on the Rights ofIndigenous 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 tothe International Covenant on Economic, Social and Cultural Rights (The IntergovernmentalWorking Group For the Elaboration of a Set of Voluntary Guidelines to Support the progressiveRealization of the Right to Adequate Food in the Context of National Food Security. Rome,2003), available at: <http://www.fao.org>.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 tradition-ally have possessed or occupied and used, and to maintain and strengthen a spiritual relation-ship with them. This recognition is coincident with many rulings in national, regional andglobal adjudication bodies. Equally important is the Declaration’s recognition of indigenouspeoples’ right to govern their lands and territories with their own forms of land tenure systemsand institutions. The Declaration also enshrines the right to determine and develop prioritiesand strategies for the development and use of their land, territory and other resources and, atthe same time, establishes the principle of FPIC under which the States must obtain theindigenous people’s approval for any project affecting indigenous territory or resources. Other




may impact on policy development and practice precisely by reason of its lack oflegal effect – rather, because it exercises an informal ‘soft’ influence. Accordingto common idea, soft laws are “rules of conduct that are laid down in instru-ments which have not been attributed legally binding force as such, but never-theless may have certain (indirect) legal effects, and that are aimed and mayproduce practical effects”.60

In another opinion

soft law is rules of conduct which find themselves on the legally non-binding level (in thesense of enforceable and sanctionable), but which according to their drafters have to beawarded a legal scope, that has to be specified at every turn and therefore do not show auniform 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 “non-treaty agreements”. He holds that

[a]ccordingly they are not regarded as substitutes for treaties, but as an independentinstrument 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 asthey are not recognized in international law or in single states as a source of legalobligations. At any rate, their political function resembles that of treaties: non-treatyagreements, too, provide the parties to international arrangements with the power “tojustify and persuade”.

relevant instruments of soft law include the UN Declaration on Social Progress andDevelopment, the World Conference on Agrarian Reform and Rural Development and itsAction Plan (better known as the Peasants’ Charter), the Declaration resulting from theInternational Conference on Agrarian Reform and Rural Development, the Code of Conductfor Responsible Fisheries, the Voluntary Guidelines to support the Progressive Realization of theRight to Adequate Food in the context of National Food Security, the UN Basic Principles andGuidelines on Development-based Evictions and Displacements, the Guiding Principles onInternal Displacement and the Pinheiro Principles on Housing and Property Restitution forRefugees and Displaced Persons, the Vancouver Declaration on Human Settlements, theIstanbul 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 LawReview, 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 documentsof the highest political importance, declarations of intent, codes of conduct and guidelinesdemonstrate the increasing importance of agreements below the level of treaties”.




6.2 Steps toward implementation of the VGGT

In the present framework, it is evident that the VGGT are a flexible tool inachieving policy objectives. Indeed, states and other actors may undertakevoluntarily to do what they are less willing to do if legally obligated. Thevoluntary nature of the VGGT also requires, as written in the official document(Part 7), the states to implement, monitor and evaluate their feasibility. To thisregard, it has been stressed,63

[t]here are several ways of promoting this: first of all, awareness raising activities shoulddisseminate information about the VGGT and their provisions in order to make themknown 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 beelaborated. Another step toward implementation of the Guidelines consists of nationaldialogues to discuss priorities for implementation.

A recent signal of the importance of the implementation process of the VGGTcame from the 67th Session of the General Assembly of the United Nations.64

The Second Committee recommends to the General Assembly the adoption of thedraft resolution on “Agriculture development and food security”. The draftresolution first “[r]ecognizes the important role and inclusive nature of theCommittee on World Food Security as a key organ in addressing the issue ofglobal food security, including in the context of the global partnership for foodsecurity” and then “[e]ncourages countries to give due consideration to imple-menting the Voluntary Guidelines on the Responsible Governance of Tenure ofLand, Fisheries and Forests in the Context of National Food Security, 19 asendorsed 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 roleof sustainable agriculture in feeding global population and its link in the fightagainst hunger, malnutrition and poverty, especially in developing countries.They also stressed that investment in sustainable agriculture and rural develop-ment is essential to support the progressive realization of the right to adequatefood.

63 P. Seufert and S. Monsalve Suárez (FIAN International), Monitoring the Voluntary Guidelineson the Responsible Governance of Tenure of Land, Fisheries and Forests. A civil SocietyPerspective (Land Tenure Working Paper 22, FAO, 2012).64 UN, General Assembly, Agriculture Development and Food Security. Report of the SecondCommittee, 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).




The Agricultural Ministers have recognized furthermore the importance ofan environment enabled to increase and sustain responsible private investmentin the agricultural sector, based on a legal framework, safeguarding the rightsand interests of the states and their populations, with special attention to ruralcommunities and rural people, including their tenure rights. They have alsopointed out the importance of investment in public goods that can createappropriate conditions for farmers and other investors.

In this general context, also considering the central role of farmers asinvestors in the agricultural sector, the Summit has committed to strengthenthe skills and abilities of smallholder farmers to promote equitable access tonatural resources and to support farmers in organizing themselves in order tocreate efficiencies and gains in productivity. It focused, in particular, on facil-itating their access to capital and financial services, on furthering the transfer oftechnology and on providing information services.

The Berlin Global Forum has acknowledged the large-scale investments’opportunities when “the investors give priority to business models whichinclude smallholder farmers in value chains, respect legitimate tenure rightsfor both women and men and all applicable laws, promote transparency andaccountability in investments related to transactions in tenure rights over landand natural resources” as stated in the Summit’s final document. The mostsignificant statement is the call on the parties to confirm their intention toimplement the VGGT in accordance with national priorities and the call onbusiness enterprises to comply with it domestically and abroad.

The final call on all parties consists of further developing overall guidancefor responsible investment by committing themselves to actively support theongoing inclusive consultation process within the CFS to develop PRAI that willhave a high degree of legitimacy and expedite the progressive realization of theright to adequate food.

This specific commitment was remarked, during the Summit, by FAODirector-General, Josè Graziano da Silva, who verbatim affirmed that “at theglobal scale, the next step in improving governance will be the development ofguidance for responsible agricultural investments. This is the next challenge forthe Committee on World Food Security”.66

Another step toward the implementation of the VGGT has been performedby CSOs, supported by IPC, who participated in opening a process of coordina-tion 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: <http://www.fao.org/fileadmin/user_upload/FAODG/docs/2013-01-19-global-forum-for-food-agriculture-2013-DG-speech.pdf>.




been done since the adoption of the Guidelines; national and regional strategiesfor using the Guidelines; possible additional sources of funding (EU, FAO-OCP,IFAD and OHCHR)67; connection of the Guidelines to other processes/initiativesagainst land grabbing; mobilization against G8 New Alliance for Africa; strate-gies vis-à-vis World Bank, private sector and ILC.68 An interesting proposal wassubmitted by the IPC to the FAO Tenure Division for funding of capacity buildingmaterials on the VGGT produced directly by CSOs and social movements; itconsists of the popular version of the VGGT, the capacity building manual forpromoters and audiovisual materials. During the meeting, it has been alsoreconfirmed that implementation is the responsibility of the states. Thereforecivil society will demand implementation but through regional and nationalplatforms established along the principles defined in the VGGT.

Recently, the G8 New Alliance has also claimed to implement the VGGTbut its actual goals are not clear. The New Alliance, still in phase of legit-imizing itself, links land, food and nutrition and favors corporations. It isphase two of the G8’s coordinated response to the global food crisis andintends to support national agricultural plans in developing countries. TheNew Alliance promotes a voluntary approach to regulate the corporate invest-ment in land that it encourages. However, within each framework, the NewAlliance partners confirm their “intention” to “take into account” of both, theVGGT and the PRAI. The PRAI, as is well known, were initiated by WorldBank in 2009 and have been rejected by CFS because they were used tolegitimize land grabbing.

While the VGGT were adopted by CFS, after a three-year process of bottom-up consultation, their effectiveness will depend entirely on how they are imple-mented. But the positions seem to be irreconcilable: social movements and theCSOs within the CFS ask the VGGT to be translated into binding national laws,whereas corporations aim it to remain voluntary references. GRAIN holdsthat the New Alliance purpose to implement both the VGGT and the PRAIthrough “pilot implementation programs” can hide the real intention of landgrabbing.69

67 EU (European Union); FAO (Food and Agriculture Organization) and OCP (Office forCommunication, Partnerships and Advocacy); IFAD (International Fund for AgriculturalDevelopment); OHCHR (Office of the United Nations High Commissioner for Human Rights).68 International Land Coalition is a mixed platform of NGOs, IFIs, UN International Agenciesseating in IFAD.69 GRAIN, The G8 and Land Grabs in Africa (2013), available at: <http://www.grain.org>.




7 Conclusions

The final text of the Voluntary Guidelines, realized in three years of negotia-tions between 96 governments and Civil Society Organizations inside the CFSat United Nation Food and Agricultural Organization (FAO) headquarters, wasformally endorsed on 11 May 2012. With regard to the adoption of the VGGT,the Special Rapporteur on the Right to Food affirms resolutely: “this marksa new era for international cooperation on land issues”.70 The VGGT anchorthe land grabbing matter to the existing obligations of States underInternational Law, explicitly referring to the universal Declaration ofHuman Rights. Therefore, the VGGT are a first, essential step made in thelong road ahead until people’s rights to land, fisheries and forests will befully recognized and respected. Yet many more are needed to secure theserights.

The VGGT – as a new instrument developed by the Committee on FoodSecurity of FAO – rightly acknowledge the key role of women, peasantfarmers, fishing communities, pastoralists and indigenous peoples.Nonetheless, they fall short on issues that are critical to the livelihood ofsmall-scale food producers. The text is, at this moment, not strong enough inprioritizing the essential support to small-scale producers, who have theabsolute priority if governments want to achieve sustainable development.The VGGT, because of several intrinsic inadequacies, fail to provide a suffi-ciently comprehensive set of rules to effectively counteract the widespreadpractice of grabbing of natural resources, such as land and water, whichcontributes to food insecurity, violation of human rights and environmentaldegradation. It is also disappointing that they do not include water as a land-related resource.

Representatives of small-scale food producers participated to have their sayat all stages of negotiations, bringing their real life experience into the decision-making process. The process proved able to bring a wide range of voices to thedebate, making it easier to find solutions to difficult and contentious issues,

70 “The Special Rapporteur commends the work of FAO on these Guidelines: FAO initiatedthem, led a long consultative process, and is now preparing their implementation at countrylevel. FAO has also recently played an important role in the context of the CFS Open EndedWorking Group on principles for responsible agricultural investments, which will enable CFS totake ownership of the matter” (O. De Shutter, available at: <http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A-HRC-22-50-Add3_en.pdf>).




such as tenure of land, fisheries and forests according to a “bottom-up” parti-cipatory approach to set legal principles and rules.71

Although CSOs still disagree with several parts of the final text, they willwork to ensure that the VGGT are implemented in a way that strengthens therights of small-scale food producers and commit to use them as a tool toadvance their struggles.72 CSOs call on governments and intergovernmentalorganizations to implement the Guidelines to effectively and urgently contributeto a sustainable and equitable governance of natural resources.

Finally, it is essential to remark that land grabbing is only one of the mainissues of land control in the world. The VGGT are a very important “soft law”tool that urges every State and international organizations to guarantee accessto land for small food producers and to build a link between food security andthe progressive realization of the right to adequate food.

References

Adornato, F., I diritti della terra, Agricoltura, Istituzioni, Mercati, no. 2 [2011] [Adornato, F., LandRights].

Alden Wily, L., Whose Land Is It? Commons and Conflict States (2008), available at: <http://www.rightsandresources.org/documents/files/doc_853.pdf>

APRODEV, Policy Brief: The Role of European Development Finance Institutions in Land Grabs(May 2013), available at: <www.aprodev.eu>

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 ofAgrarian Change (2008).

Borras, Jr. S., R. Hall, I. Scoones, B. White, and W. Wolford, Towards a better understanding ofglobal 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 thantoken inclusion; global civil society at the CFS has been relatively successful in advancing itsgoals and articulating alternative policies that challenge the mainstream policies advanced bythe G8 and World Bank. Indeed, the success by global social movements to position theVoluntary Guidelines as a wedge and counter-discourse against the earlier maneuver of theWorld Bank to place the Principles for Responsible Agricultural Investments (PRAI) – which isessentially a voluntary, corporate self-regulatory instrument – as the centrepiece to regulateland grabbing is indicative of the chessboard politics shaping emergent global land govern-ance” (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 theCommittee on World Food Security (CFS), CFS 2013/40/Inf., 13, September 2013, available at:<http://www.fao.org/docrep/meeting/029/mi051e.pdf>.




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: <http://farmlandgrab.org>, accessed 13September 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: <http://www.fao.org/docrep/meeting/029/mi051e.pdf>,accessed 13 September 2013.

De Schutter, O., Large-scale land acquisitions and leases: A set of core principles and measuresto address the human rights challenge (2009), available at: <http://vorige.nrc.nl/multi-media/archive>

De Schutter, O., How not to think of land-grabbing: three critiques of large-scale investments infarmland, 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, 52Harvard International Law Journal, no. 2 (2011).

European Commission (EC), EU Land Policy Guidelines (Brussels, 2004), available at: <http://ec.europa.eu/development/icenter/repository/EU_Land_ Guidelines_Final_12_2004_en.pdf>

European Coordination via Campesina and Handsoff the Land Network, Land Concentration,Land Grabbing and People’s Struggles in Europe (April 2013), available at: <http://www.eurovia.org/IMG/pdf/Land_ in_Europe.pdf>

FIAN, Civil Society Organizations’ Proposals for the FAO Guidelines on Responsible Governanceof Land and Natural Resources Tenure (Heidelberg, 2011) available at: <http://www.food-sovereignty.org/CoreIssues/AgrarianReformandTerritory/VGforLandandNaturalResourceTenure.aspx>

Glopolis, Why Does Responsible Investment in Agriculture Matter? (2013), available at: <www.glopolis.org>

GRAIN, Seized! The 2008 Landgrab for Food and Financial Security, available at: <http://www.grain.org/article/entries/93-seized-the-2008-landgrab-for-food-and-financial-security>

GRAIN, The G8 and Land Grabs in Africa (2013), available at: <http://www.grain.org>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: <http://www.fao.org/fileadmin/user_upload/hlpe/hlpe_documents/HLPE-Land-tenure-and-international-investments-in-agriculture-2011.pdf>

HLPE, Biofuels and Food Security. A Report by the High Level Panel of Experts on Food Securityand Nutrition of the Committee on World Food Security (Rome, 2013), available at: <http://www.fao.org/fileadmin/user_upload/hlpe/hlpe_documents/HLPE_Reports/HLPE-Report5_Biofuels_and_food_security.pdf>

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: <http://www.foodfirst.org>ILC, Tirana Declaration: Securing Land Access for the Poor in Times of Intensified Natural

Resources Competition (Rome, 2011), available at: <http://www.landcoalition.org/sites/default/files/aom11/Tirana_Declaration_ILC_2011_ENG.pdf>

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).




McMichael, P., Interpreting the Land Grab, Transnational Institute TNI (2011), available at:<http://www.tni.org>

Mulleta, F.F., A Critical Review of the World Bank, FAO and Rights-Based Guidelines on Large-Scale Land Transfer (2012), available at: <http://farmlandgrab.org/uploads/attachment/farris_fantu_agter_2012.pdf>

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: <http://

www.oxfam.org>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 thePhenomenon of Land Grabbing].

Peluso, N.L., and C. Lund, New Frontiers of Land Control: Introduction, 38 The Journal of PeasantStudies, 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 societyperspective (Land Tenure Working Paper 22, FAO, 2012).

Tal, A., and J.A. Cohen, Bringing “Top-Down” to “Bottom-Up”: A New Role for EnvironmentalLegislation in Combating Desertification, 31 Harvard Environmental Law Review, no. 1(2007).

The Intergovernmental Working Group, Information Paper on Implications of the VoluntaryGuidelines for Parties and Non-Parties to the International Covenant on Economic, Socialand Cultural Right (Rome, 2003), available at: <http://www.fao.org>

UN, General Assembly, Agriculture Development and Food Security. Report of the SecondCommittee, A/67/443, 17 December 2012.

UN-REDD PROGRAMME, Guidelines on Free, Prior and Informed Consent (2011), available at:<www.un-redd.org>

von Bernstorff, J., The Problem of “Land Grabbing”, extract from J. von Bernstorff, Das Problemdes “Land Grabbing” und die UN-Voluntary Guidelines on the Responsible Governance ofTenure of Land, Fisheries and Forests in the Context of National Food Security (2012),available at: <http://www.jura.unituebingen.de/professoren_und_dozenten/vonbern-storff/projekte/das-problem-des-201cland-grabbing201d-und-die-un-voluntary-guidelines-on-the-responsible-governance-of-tenure-of-land-fisheries-and-forests-in-the-context-of-national-food-security>

World Bank, Rising Global Interest in Farmland. Can It Yield Sustainable and Equitable Benefits?(Washington, DC, 2011).




Article

Fantu F. Mulleta*, Pierre Merlet and Johan Bastiaensen

Questioning the “Regulatory Approach” toLarge-Scale Agricultural Land Transfers inEthiopia: A Legal Pluralistic Perspective

Abstract: Until now, most policy recommendations put forward to deal with thepossible negative impacts of large-scale land acquisitions are either directedtowards the legal recognition and formalization of land rights in order to securethe rights of historical land holders or the design and implementation of“voluntary” guidelines and codes of conduct that promote positive developmentoutcomes of large-scale land investments. This paper argues that these types ofrecommendations tend to depoliticize the debate around access to land andnatural resources, whether at local, national and international levels. This paperlooks to bring this political dimension back by proposing an analytical frame-work in line with the legal pluralist tradition. From a legal pluralistic analysis ofthe process of land deals in Ethiopia, this paper finds out that socio-culturalidentity and power structures, rather than market and regulatory failure alone,play a fundamental role in redirecting negotiations and determining losers andwinners from such deals. With the above finding, this paper finally suggests thatblueprint international standards or investment regulatory measures cannot beused as a panacea and that solutions need to be more profound than suchconventional approach.

Keywords: legal pluralism, large-scale agricultural land transfer, land tenure,Ethiopia, investment regulation, World Bank Principles for ResponsibleAgricultural 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] Merlet: E-mail: [email protected], Johan Bastiaensen:E-mail: [email protected], Institute of Development Policy and Management (IOB),University of Antwerp, Antwerp, Belgium




1 Introduction

One of the new realities of development is the expansion in large-scale transferof rural land to investors – also referred to as “land grabbing”. According to theWorld 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 LandMatrix shows information of worldwide transfers for 1,044 deals, representing51.6 million hectares as of July 2013. Around 54% of these deals are located inAfrica.2 A considerable number of such large-scale land transfers are concen-trated in Sub-Saharan Africa including Ethiopia.

According to recent reports, Ethiopia is in the front run of transferring largetracts 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 theOakland Institute3 estimates the total land transferred by January 2011 at around3.6 million hectares, involving 1,349 investors. The World Bank recorded landtransferred during 2004–2009 and counted around 1.2 million hectares of land,transferred to 406 investors.4 The most recent figure presented by the LandMatrix mentions a land transfer of around 2,401,021 ha for 73 deals.5

The Ethiopian government strongly supports and plans to further expandsuch large-scale land transfers claiming that there is abundance of marginal orunused land especially in the Southern lowland part of the country.6 The latePrime Minister announced that over 4 million hectares of “unutilized” land areavailable for large-scale commercial farming.7

The trend so far reveals that most of the land transfers are concentrated infour 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 andEquitable Benefits? (Washington, DC: The World Bank, 2011), p. 512 Land Matrix, available at: <http://www.landmatrix.org/>, 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 AgriculturalInvestment and Large-Scale Land Acquisitions, paper presented at the International Conferenceon Global Land Grabbing (London, 2011), available at: <http://www.iss.nl/fileadmin/ASSETS/iss/Documents/Conference_papers/LDPI/90_Shepard_Daniel.pdf>, accessed 20 April 20137 E.N. Stebek, Between “Land Grabs” and Agricultural Investment: Land Rent Contracts withForeign Investors and Ethiopia’s Normative Setting in Focus, 5 Mizan Law Review, no. 2 (2011),175–214.

402 F. F. Mulleta et al. LDR



Table 1: Regional distribution of land transfers

Regions Land in ha

Oromia 1,319,214Benishangul Gumuz 635,831SNNP 470,287Gambella 256,000Amhara 175,000Tirgay 46,105Afar 11,000Somali 6,052

Source: The Oakland Institute (2011a).

Figure 1: Major regions affected by land transfers

LDR A Legal Pluralistic Perspective 403



Some argue that the main reason behind concentration of land transfers in thesouthern lowland areas is the historical domination of the Southern peoples bythe North – what some scholars consider a reflection of the historical core–periphery power structure where the southern lowland population was subjectedto extractive policy of the central power through the paying of tribute and taxesas well as raids for resources.8

The other reason suggested by some for the concentration of large-scaleland transfers in few regions is the absence of formal land certification in allsuch 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 whichconsiders itself to be the residual owner of such undocumented land.

When looking into the use of the transferred land, agrofuel feedstocks and otherexportable cash crops, including food, are in the lead.11 One can note a significantpresence of investors from major food importing countries especially Saudi Arabiaand Egypt who aim at the supply of food to their home markets. Also Indian firmsare prominent in food production for their home as well as broader world foodmarkets. These tendencies indicate that increased domestic food productionwill notautomatically lead to increased food security in Ethiopia. This evidently raisesquestions about the ethical nature of the strategy, knowing that Ethiopia is one ofthe most food insecure countries and largest recipient of food aid in Africa.

The current debate of large-scale agricultural land deals is mainly related tothe economic benefits and challenges of such deals, as well as the ways in whichstates can maximize the benefits and mitigate the risks through regulations.International organizations, such as the World Bank and FAO, have played akey role in advancing such a regulatory approach through the formulation ofinternational 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 Commercializationand 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 offormalizing 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: Findingsof the Global Commercial Pressures on Land Research Project (Rome: International LandCoalition, 2012), p. 24, available at: <http://www.landcoalition.org/sites/default/files/publica-tion/1205/ILC%20GSR%20report_ENG.pdf>, accessed 26 April 2013.




criticized for paying too little attention to the local socio-institutional processesand 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 economyapproach, a human rights-based approach and a legal pluralist approach, cameinto light each resensitizing the process of land deals, problems associated to itand the way forward from a different perspective.13 Indeed, while almost all theapproaches have a similarity in recognizing the problematic nature of large-scaleagricultural land transfers, each differ in the way they conceptualize the problemsand try to scale-up the policy debate and responses. Using lenses of a legalpluralist approach, this paper analyzes and calls into question the assumptionsand policy prescriptions of the regulatory approach to large-scale land transfers.

2 Re-conceptualizing issues around large-scaleland transfers from a legal pluralistic approach

2.1 Legal pluralism: basic tenets

In its early theoretical conception by Griffiths the term legal pluralism wasdefined 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 multiplicityof “legal orders”, in its broader sense as “normative orders”, which are gener-ated in multiple social fields/spaces where people interact and form socialnetworks.15 These multiple social spaces which generate multiple legal ordersmay 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 socialspaces but also the fact that people belong to more than one of such socialspaces, 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: APreliminary 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 AppropriateSubject 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).




Also, for legal pluralists, there is no strict hierarchical structure among thedifferent social spaces. They coexist without subordination but rather interactionbetween the different actors within.17 Accordingly, rules emanating from suchmultiple social spaces are also considered as not being subordinate of oneanother; and as such different rules can coexist at the same time even if theyare in contradiction. Here, what really matters is the mobilization and recogni-tion of a rule by members of relevant social spaces and not the concurrence withor recognition by another social space, like that of the state.

This is in contrast to the approach of legal centralism wherein state law isregarded as the ultimate law or “ground norm” in governing human relations,and other rule-generating social spaces are considered of having “a lessernormative ordering” or “subordinate position” to that of the state.18 Here,uniformity of laws is deemed crucial and thus other forms of rules, for instancereligious or customary rules, can exist if and only if they do not contradict butrather are incorporated into state law.19 Hence, rules are viewed as mutuallyexclusive20 wherein the state law is considered as the prime norm in play.

The legal pluralistic approach views diverse social spaces not as simplyautonomous, isolated or non-hierarchical but as mutually constructive, at timesoverlapping and semi-autonomous spaces.21 Such semi-autonomous socialspaces influence (shape and reshape) each other through interaction and nego-tiation between social actors belonging to them. In the words of Moore “Thesemi-autonomous social field has rule-making capacities, and the means toinduce or coerce compliance; but it is simultaneously set in a larger socialmatrix which can, and does, affect and invade it […]”.22

Hence, what is really important is neither the state law nor rules in othersocial spaces, but the norm that comes out of the interaction and negotiation onthe ground – closely related to what different authors referred to as “rules inuse”,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 forSocial-Ecological Analysis, 37 Environmental Conservation, no. 4 (2010), 451–463.24 F. Von Benda-Beckmenn and K. Von Benda-Beckmenn, The Dynamics of Change andContinuity 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.




Such “practical norms” or “rules in use” may be more influenced by onelegal order than another depending on the agenda setting power of actors indifferent social spaces. As norms are socially constructed, the ability of someactors in presenting their perspective or meaning system as the “only rightperspective” affects the visibility of other perspectives or meaning systems.This is precisely stated by Meinzen-Dick and Pradhan as “laws are only asstrong as the institution or collectivity that stands behind them”.26 Hence, thegreater the agenda setting power of a certain group, for instance a state, themore visible and generally applicable its rules become. But it does not necessa-rily mean that the other rules and social orders will vanish or become “null andvoid” as what is considered by legal centralists; they will rather coexist perhapswith lesser visibility and influence.

The visibility or degree of influence of different legal orders may be quitedifferent at a certain point in time and will change with changes in social powerof actors. Hence, the diverse legal orders operate in a continuously competingsocial network which renders rules anything but stable.27 Such openness todynamism is one of the merits of a legal pluralist approach when dealing withcomplex social orders or socio-institutional processes which involve competitionamong “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 plur-alistic approach. Besides the role of non-state actors in manoeuvring states’legal order, lack of homogeneity within the state itself is another factor thatrenders state laws far from a “coherent” piece of rule. Indeed, a state isconstituted of several actors each having different, at times contradictory, agen-das and interests – making states non-monolithic in character, and therebyimporting struggles and negotiation within the social space of the state.29

Hence, the “rules in use” are also determined by such intra-state struggles andnegotiations which involve power and exclusion within.

Though the approach of legal pluralism is contextually applied under dif-ferent disciplines, the core tenet remains the same – that neither the state is notthe 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 ofGlobal 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 OneAnother (Cambridge: Cambridge University Press, 2001), p. 20.




shape the social order. In the words of Vanderlinden, “it acknowledges thestate’s incapacity to realize to the full its totalitarian ambition”.30 It in turnunderlines the capability or agency power of non-state actors to generate rulesin their respective social space; administer and enforce such rules; as well asinfluence or manoeuvre rules in other social spaces including that of the state.

In recognition of the semi-autonomous nature of the different social spacesand their respective rules, the key focus of the legal pluralistic approach lays onthe way in which different legal orders interact with each other and get moder-ated through negotiation. It also explores the ways in which individual actors,belonging to multiple social spaces and thus having multiple identities, employtheir agency in strategically choosing among the diverse legal orders that betterlegitimize 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 negotiationbetween multiple social actors belonging to different social spaces is a usefulapproach in the study of land rights from a socio-institutional perspective whereland rights are nothing but social relations.32 Under this socio-institutionalapproach, land is seen as a space that hosts diverse natural resources, andland rights are broadly defined as “relations with other humans who mighttravel over this space or use its resources”.33 Hence, the study of land rights isneither limited to nor mainly about, who has a statutory right over a piece ofland in a legal centralistic sense of it, but how competing claims of differentactors are negotiated and exercised on the ground.

Indeed, land has a multifunctional character in that it is not strictly speak-ing a single item that can be administered by a single norm.34 Rather landcarries “bundle of resources” within it, including water, minerals, tree and soil,whose governance call for multiple norms and which in turn gives rise tomultiple 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: <http://www.agter.asso.fr/IMG/pdf/Merlet_2007_11_Land-Policies-Proposal-Paper_EN-pt.pdf>, accessed26 April 2013.33 Ibid., p. 8.34 Meinzen-Dick and Pradhan (2002), supra note 16, p. 1.




multiple rights which often do not belong to one person – what is commonlyreferred to as “bundle of rights”.35 Such multiple rights bring in multiple rightholders in the social arena over land, each belonging to different social spacesand 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 whereinelites, who do not necessarily have a legitimate right on the basis of any legalorder, can have an “effective control” over land based on social power, and thusbecome one actor/claimant in the social relations over land.36

Such non-exclusive nature of land rights and resulting coexistence of multi-ple claimants over same land calls for the application of different rules andtenure system at the same time,37 rendering legal pluralism a useful approach tocapture such plurality of regimes, rights and claimants.

2.3 A legal pluralistic view of the debates surroundinglarge-scale land transfers

A legal pluralistic conception of rules and a close investigation of socio-institu-tional processes around land rights is crucial also in studying the current large-scale transfer of agricultural land to investors.

The initial debate was limited to its opportunities and challenges in terms ofjob creation, raising public revenue, export potential and other economic con-siderations,38 but has evolved into a debate about regulating large-scale landdeals so as to maximize benefits and mitigate risks.39 The focus lays onwhich regulatory mechanisms render such deals a “responsible investment inagriculture” – whether to have domestic or international regulation on respon-sible 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 ScaleTransnational 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 TheyHave a Future? 40 World Development, no. 4 (2012), 712.




terms on a case by case basis; and whether to focus on the role of corporatesocial responsibility.40

While part of the current debate still revolves around ways of regulatingsuch large-scale land transfers, it has partly evolved into another stage withemerging criticism on such a “regulatory approach”.41 According to the critics,putting the whole emphasis on a regulatory approach and assuming that all thechallenges related to large-scale land transfers will be addressed through stateregulation is too simplistic for it ignores the fundamental point that land rightsare not just legal but also social matters. It also disregards the fact that landrights 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 abroader perspective of looking into issues of large-scale land transfer, theirapproach is different but possibly complementary – the political economyapproach focusing on the nature of (“exploitative” capitalist) institutions asthe main determinant of outcomes, whereas the legal pluralistic approach pay-ing greater attention to processes of interaction and negotiation within institu-tions, without adhering to a particular theory about the nature of institutions perse. Particularly in the context of current land deals, the political economyapproach mainly focuses on institutional or structural outcomes of suchland deals including capitalist penetration or transformation in agrarian andlabour structure – “land grab-induced accumulation, differentiation and displa-cement/dispossession”,42 while the legal pluralistic approach takes an actor-oriented perspective whereby the focus lies on how structures can be man-oeuvred and impacts moderated through negotiation and agency power ofdifferent actors.

Rather than seeing the outcome of land deals as a direct/passive submissionof local land rights, the legal pluralistic approach makes an in-depth explorationof the interface between land grab-induced structural pressures on the one handand actors’ livelihood strategies on the other – focusing on agency in processesof negotiation or struggle between actors with competing claims, rights anddiscourses.

40 H. Liversage, Responding to “Land Grabbing” and Promoting Responsible Investment inAgriculture 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




3 A legal pluralistic view of large-scaleagricultural land transfers in Ethiopia

Unlike the usual commercial transfer of land for private investors, recent landtransfers feature diverse actors belonging to different social spaces including thehost state, investors of different origin, the local community, home states in caseof foreign investment, and international financial institutions.43 All actors havedifferent roles and interests; they use different discourses to legitimize theirclaim and try to shop around the different legal orders.

This section aims to re/conceptualize recent land deals in Ethiopia from a legalpluralistic perspective by exploring the different claims and discourses of the diverseactors as well as the discursive struggle among such actors in advancing one’smeaning system. In the interest of space, the following discussion mainly focuseson 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 inEthiopia plays a central role in the administration of land. It is the statutoryprovider of any private or communal land right, and only very few cases offormal recognition of customary or local land administration systems exist.Moreover, the state is the only actor statutorily allowed to transfer land forinvestment holding,45 thus from a legal point of view it logically plays a keyrole in recent large-scale land deals.

It is normally regional governments that have a constitutional power toadminister land in their territory and therefore negotiate and decide on long-term investment transfers in Ethiopia. However, their constitutional power hasbeen reduced as of 2009, with the creation of the federal land bank, a centralauthority that is entrusted to negotiate and sign lease agreements for rural landsbeyond 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: <http://www.ibcperu.org/doc/isis/13570.pdf>, accessed 25 March 2013.44 Constitution of the Federal Democratic Republic of Ethiopia (1994), Articles 40(3), 52(2) and89(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 ofAgrarian Relations in Ethiopia, 39 Journal of Peasant Studies, no. 1 (2012), 93.




away from the local level. It also creates a dual land administration system (fortransfer of land below and above 5,000 hectares respectively) wherein rules andpractices are not necessarily coherent.

In any case, land deals are negotiated and signed in a very state-centricmanner whereby either tier of the government present itself as a party havingfull ownership and property rights of the land leased. Local people do not playany part in negotiating lease agreements.47

Like elsewhere, the Ethiopian state discursively justifies its policy with theargument that there is availability of huge unutilized land.48 This, however, is awidely contested claim as there is a general tendency to consider most non-agricultural or uncultivated land as “idle”, “marginal” or “vacant” land, even ifother claims may exist over such land.49 This view disregards the multi-func-tional role of land for local people and represents a biased conception of land asa mere factor for agricultural production. Accordingly, several studies havefound that most lands that are considered “vacant” and opened up for invest-ment transfer have in fact been used for long by local people for diversepurposes including for grazing, as source of water, firewood, hunting and forspiritual purposes.50 Such fact is aptly put by one scholar stating “if land inAfrica hasn’t been planted, it is probably for a reason. May be it’s used to grazelivestock 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 Ethiopiancontext wherein most of the land transfers are concentrated in the lowland partof the country where pastoralism and shifting cultivation dominate, obviouslydepending on land but not necessarily in the form of permanent cultivation. Thedisregard for this reality allows transfers to be carried out without even com-pensating 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 forEnvironment and Development, 2011b), p. 2.48 O. De Schutter, How Not to Think of Land-Grabbing: Three Critiques of Large-ScaleInvestments 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 ofAgrarian Dispossession in the Current Global Land Rush, paper presented at the InternationalConference on Global Land Grabbing (London, 2011), available at: <http://www.iss.nl/filead-min/ASSETS/iss/Documents/Conference_papers/LDPI/74_Liz_Wily.pdf>, accessed 25 April2013.50 K. Deininger, Challenges Posed by the New Wave of Farm Investment, 38 Journal of PeasantStudies, no. 2 (2011), 217–247.51 Daniel (2011), supra note 6, p. 11.52 Wily (2011), supra note 49, p. 553 Deininger and Byerlee (2011), supra note 1, p. 26.




In fact, one of the core obligations of the state in most land lease agree-ments is to deliver the land “vacant” or “free of impediments”. Since most of theland 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 theland is the forced relocation of people through the villagization program.54 Thestate justifies its villagization program arguing that it is “an effort to tacklepoverty 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 becausethey are viewed as a threat to their pastoral way of life and tradition and anexcuse to “clear” land for investment transfer.56 Given the incapacity of the stateto deliver upon its promises of improved service delivery and infrastructure, thenew settlements even threatened in their mere survival since their pastorallivelihoods are undermined.57 Yet, the state as a more powerful actor withindiscursive struggles around these issues largely manages to sell a positive imageof the villagization programs.

The state also legitimizes its control over large-scale land transfers by itsstatutory power to administer all lands, and more specifically its power tochange communal lands into private holdings “as may be necessary”.58 Thequestion remains however: necessary for whom? And who decides what isnecessary? In the current process of land transfer, local people clearly haveno/lesser influential say in negotiations and decision making,59 and their inter-est thus have little prospect of being respected. Indeed, more than a third of landexpropriation cases in Ethiopia are destined for private projects rather thanpublic investments60 – calling into question the role of the state as a promoterof public interest, rather expressing a common situation of state giving a

54 Villagization involves resettlement of people from one’s original land into other designatedvillages. See Makki (2012), supra note 46, p. 98.55 A state official cited in Human Rights Watch, “Waiting Here for Death”: Forced Displacementand “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, availableat: <http://www.landgovernance.org/content/short-term-research-2011-small-grants-programme>,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, andCompromise in Large-Scale Land Deals for Biofuels Projects in Africa, 37 Journal of PeasantStudies, no. 4 (2010), 899–916.60 Deininger and Byerlee (2011), supra note 1, p. 105.




“helping hand to powerful private interests” despite its exclusionary impact onthe 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 maincategories of domestic investors involved, foreign investors are predominantlyfrom the Gulf States and India.

Investors mostly base their claim on state laws and the international legalorder. Especially foreign investors heavily rely on bilateral investment treaties(BITs) negotiated and signed between the host and their home state. This isbecause BITs are signed to protect and promote the interests of foreign investorsand 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 countriesand their impoverished population.62 Accordingly, foreign investors are ofteninsulated from domestic regulatory power due to BIT protection against localcontent, employment or supply requirement, restrictions on free reparation ofprofit, and other host state requirements that discriminate between domesticand foreign investors.63 While this effectively hampers the regulatory capacity ofhost states, it also entitles investors with stronger rights/claims, enforceable in adifferent legal order than that of the domestic legal domain.

Ethiopia has already signed BITs with most investor countries, includingIndia, Egypt, China, Israel, Germany, US, UK and the Netherlands.64 This givesforeign investors the opportunity to shop around different legal orders at stateand international level in asserting their rights.

Investors also rely on land lease agreements to base and defend theirclaims. Such agreements are results of negotiation between investors and hoststates 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: <http://www.ethioinvest.org/IIAs.php>,accessed 7 March 2013.65 L. Cotula, Land Deals in Africa: What Is in the Contracts? (London: International Institute forEnvironment and Development, 2011b), p. 24.




is evident from the lucrative deals offered to investors by developing countriesdesperately competing to attract foreign capital.66

Both the state and investors view land lease agreement as an importantinstrument to promote one’s interest, albeit in a very different way and on thebasis of different discourse. For investors, land lease agreements are like anyother commercial instruments which equally secure the rights of both contrac-tual parties. In the words of one foreign investor in Ethiopia “our agreementwith 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 ownbusiness. There is no governance, no constraints”.67 However, the governmentviews land lease agreements as a regulatory instrument to control the activitiesof investors and create safeguard mechanisms.68

Even if investors seem to mostly legitimize their investment claims usingtheir agreement with the state (through BITs and lease agreements), and thusadhere to a legal centralist view, such agreements do not always represent aconsensus between actors signing it. It is often the most powerful actor thatdefines and thus reaps most benefits from the rules. As we will indicate in ourin-depth assessment of the BITs below, the terms and conditions of such agree-ments 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 ontheir age-old customary land tenure system.69 This is particularly true in thesouthern lowland part of the country, where there is no formal land certificationsystem and most of the large-scale land transfers are taking place. Private andcommunal land holdings for settlement, cultivation, grazing, water collectionand other purposes is secured through a clan-based or tribal tenure systemwhose origin dates back to long before the incorporation of southern territoriesinto the imperial rule, and which later coexisted with other tenure systems of thestate.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 “agreementsprecisely designed to ensure positive results in terms of job creation, availability of foreignexchange and availability of various agricultural products in domestic markets” Interview,available at: <http://www.youtube.com/watch?v¼ jED11-_LC7o>, accessed 2 March 2013.69 Wily (2011), supra note 49, p. 14.70 The Oakland Institute (2011a), supra note 3, pp. 42, 13.




Hence, most land statutorily considered “vacant” by the state, because it isnot formally registered under private or communal holding nor seems to beactively used for cultivation, is not “free from local claims”. This makes the localcommunity another key actor in large-scale land transfers, having a competingclaim 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. Thisalso puts the local community in a (discursive) struggle with the state andinvestors on questions of who has a legitimate claim over the land and whodecides on what is legitimate.

Though of lesser capability to win most discursive struggles, local commu-nities use their agency to change their livelihood strategies, coping with loss ofthe land and natural resources.71 However, such forced change of livelihoodmostly comes along with anger and resentment. Given the constellation ofpower, local communities mostly express their resistance and frustration inindirect ways, including attacking investors or their workers,72 poaching farmproducts and destroying properties of investors – in line with what James Scottcalled the infrapolitics of the dominated.73 This indicates that the protection andenforcement of state-based property rights can get very costly when land alloca-tion to investors is resisted and met with aggression by local people.74 This iswhy most investors have included a clause in their lease agreements obligingthe state to assure peaceful possession of the land – “free of riots, disturbancesand troubles”.

With all this, there is a sufficient indication of the state-centric and lessparticipatory nature of large-scale land transfer process in Ethiopia whichindeed is a result of tiling of socio-institutional power more on the side of thestate, wherein the state as a dominant and visible actor has managed to advanceits meaning system on what a “vacant” land is and what is “necessary” for thepublic, while local communities with lesser visibility lack the agency and powerto change such meaning system. A core problem is thus the asymmetry in socio-institutional 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 AgriculturalDevelopment Project: Ethiopia (Rome: International Land Coalition, 2011), available at: <http://www.landcoalition.org/sites/default/files/publication/1021/EDC_Ethiopia_web_11.03.11.pdf>,accessed 28 August 2012.72 An example is the murder of five employees of a large investor mentioned in the mediareport available at <http://farmlandgrab.org/post/view/20413>, accessed 5 February 2013.73 J.C. Scott, Domination and the Arts of Resistance: Hidden Transcripts (London: YaleUniversity Press, 1990), p. 188.74 Platteau (2002), supra note 61, Chapter 3.




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

4 The “regulatory approach” to land deals: canit address challenges and effectively promotelocal interests?

Preceding sections have highlighted the socio-institutional problems underlyingthe process of large-scale land transfer in Ethiopia. In order to face these andother problems, one policy response advanced is the adoption of a “regulatory”or “code of conduct” approach – an approach that calls for the introduction ofmultilevel regulatory frameworks.

Such a regulatory approach is an extension of the long-established “middlepath theory” on the administration of investments by multinational corporationswherein such investments are considered intrinsically good, provided that theyare regulated through “codes of restrictive business practices” that maximizebenefits and reduce risks associated to it – an approach favouring a mix ofregulation and openness.75

Hence, the regulatory approach does not question the very existence oflarge-scale land transfers; it rather promotes its continued existence with aminimized risk – the main focus being governance of investment externalitiesas if recent land deals were like any other form of investment.76 Accordingly,many proponents of the regulatory approach consider large-scale agriculturalland transfers as “an opportunity to overcome long term underinvestment inagriculture” which can be rendered both socially and environmentally sustain-able through “guidelines or principles for good land governance and responsibleinvestment in agriculture”.77 Von Braun and Meizen-Dick describe such large-scale farm investments as a “necessity” for rural development which can bemade “virtuous” through the use of codes of conduct and other policies aimingto 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: CambridgeUniversity 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 DevelopingCountries: Risks and Opportunities (Washington, DC: IFPRI, 2009), p. 3.




Bank has identified lack of strong legal and institutional frameworks in hostcountries 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 ofLand, Fisheries and Forests; as well as the Minimum Core Human RightsPrinciples of the UN Special Rapporteur on the Right to Food.

Lately, however, the regulatory approach is facing criticism for being tooshallow, misleading and impracticable. It is considered shallow because it triesto fix the superficial problems surrounding land deals like that of payment oflesser compensation, secrecy of deals and issues of corruption which, however,are only manifestations of the real problem underlying land deals – imbalanceof social power and exclusion in land relations which allows commodification ofland at the expense of the local poor. Hence, rather than diagnosing the disease,policy prescriptions of the regulatory approach only treat the symptom. Borrasand Franco criticized the regulatory approach as a dangerous diversion ofattention from “substance” (the central issue of power asymmetry in socialrelations as well as structural problems on the nature of investments) to“form” (superficial issues of investment governance like: lease of how manyyears?; compensation of what amount?; what form of commercial presence?;which modality of land transfer and others).80 According to Li, the regulatoryapproach “takes a complex political economy problem driven by unequalpower, and parses it into components that can be addressed by technicalmeans […] drawn primarily from the toolkit of ‘good governance’”.81 Indeed,the main focus of the regulatory approach lies with the technical procedure ofland transfers, leaving underlying power structures out of the picture.

The regulatory approach is also criticized for being misleading since it takesthe prevailing imbalance in social power for granted, and the resulting localdispossession of land as “inevitable”.82 Hence, rather than looking for othermore efficient and equitable modes of agricultural investment, the regulatoryapproach tries to make a quick fix to problems of land deals, which in effectlegitimizes such deals despite their socially inequitable and structurallyproblematic character.

Finally, the regulatory approach is criticized for being impracticable, espe-cially 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.




focus of the regulatory approach lies on state’s legislative innovation, andthereby underestimates the role of other actors in (re)shaping the institutionallandscape around land deals. Also the assumption that the state is a neutralactor which always strives to harness social benefit is subject to contestation. Aswell elaborated in previous sections on Ethiopia, one of the underlying chal-lenges of large-scale land transfers is the dominant presence of states in suchtransfers and invisibilization of local claims through operation of state’s powerin different dimensions. As such, it becomes questionable whether the state canbe a key agent of beneficial change. On the basis of this general backgroundabout the theoretical assumptions and flaws of the regulatory approach to landdeals, the following sections explore some of the major global regulatory instru-ments which are trusted to redirect large-scale land transfer into a win–winoutcome.

4.1 The World Bank Principles and internationalinvestment treaties

The World Bank is a leading actor in the promotion of regulatory instruments.The World Bank Principles for Responsible Agricultural Investment (hereafterthe World Bank Principles) are founded on the general assumption that “anyland related investment” in developing countries is “desirable in principle”since such has been lacking in the past.83 Recent land deals are viewed aspart of private investment in agriculture, and thus believed to enhance thetransfer of technology, to create employment opportunities and facilitate marketaccess for developing countries. While recognizing “risks”, “equally large oppor-tunities” are underlined.84

A list of principles thus aims to strike a balance between opportunities andrisks. The principles include: respecting existing land and resource rights oflocal people; strengthening food security; ensuring good governance in landtransfers; holding consultation and participation; promoting responsible invest-ment through respect for rule of law and best practices; as well as ensuringsocial and environmental sustainability of investments.85 Detailed policy

83 Principles for Responsible Agricultural Investment that Respects Rights, Livelihoods andResources (2010), Paragraph 1.84 Deininger and Byerlee (2011), supra note 1, p. 142.85 Principles for Responsible Agricultural Investment that Respects Rights, Livelihoods andResources (2010).




prescriptions that are meant to enforce each principle are also formulated by theWorld Bank wherein states are entrusted to play a key role.

While most of the policy prescriptions look quite sympathetic to interests oflocal communities, their realization on the ground is highly questionablebecause of the prevalence of competing international principles and state obli-gations, as well as due to the very nature and purpose of land transfers whichrun counter to the policy prescriptions. For instance, one of the policy prescrip-tions suggested is for host states to take into account the dietary preferences oflocal communities when admitting large-scale investments in farmland. This,however, is not compatible with the export-oriented nature of most large-scaleagricultural investments with their primary interest in the supply of agrofuelsand cash crops to foreign markets.86

This is particularly true in Ethiopia where a significant share of investmentsinvolve production of agrofuel crops, in particular non-edible jatropha.87

Moreover, the production of industrial and cash crops such as coffee, tea andhorticulture take a considerable account of investments which do not match thedietary preference of local communities. Indeed, the Ethiopian state incentivizesand at times even pressurizes investors to produce exportable cash crops, in linewith the policy to increase foreign exchange earnings and reduce balance ofpayments problems.88

In view of enhancing the social sustainability, the World Bank suggestsdesigning domestic strategies that can ensure the materialization of host statebenefits like that of local employment opportunities, transfer of technology,expansion of local public goods and others. From experiences so far, suchsocio-economic interests are mostly enforced through performance requirementson investors including local employment, local content, and technology transferrequirements.89 However, this runs counter to other international rules andnorms including the two decade long World Bank Guideline on the Treatmentof Foreign Direct Investment, the WTO agreement on Trade-related InvestmentMeasures (TRIMs), and BITs.

It is worth noting the existence of the World Bank guideline on the treat-ment 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: CriticalPerspectives 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 AgriculturalInvestment in Ethiopia, 39 Journal of Peasant Studies, no. 1 (2012a), 114.88 Ibid., p. 121.89 Sornarajah (2004), supra note 75, p. 105.




investors without any prerequisite or performance requirements.90 These guide-lines also call for autonomous use of domestic labour and goods markets byforeign investors with least intervention from host states. It is in fact within theworking mandates of the World Bank group, especially the InternationalFinance Corporation (IFC), Multilateral Investment Guarantee Agency (MIGA)and International Centre for Settlement of Investment Disputes (ICSID), to pro-mote the corporate interests of foreign investors and facilitate their activities inhost states. The Bank has long been one of the key advocates of the “classicaltheory” on foreign investment which regards multinational corporations asnothing but good to the economies of host countries, and thus calls for hoststate provision of utmost protection rather than restrictions on activities of suchmultinational corporations.91 Indeed, the 1992 World Bank Guideline on theTreatment of Foreign Direct Investment is a reflection of this stance.

Particularly in the context of current land deals, some even blame the WorldBank for “enabling” such transfers mainly through shaping/influencing thelegislative environment of host states in a way that allows for the signing of“streamlined and lucrative investor contracts” rather than setting rigorous reg-ulatory frameworks.92 This shows how the World Bank, just like states, is not amonolithic actor in the international arena, and that different groups within theWorld Bank propagate different policy stances.

In addition to the World Bank, the WTO also sets international norms on thetreatment of investors which again are biased towards the corporate interests ofinvestors. Under the TRIMs Agreement of the WTO, states are required not toemploy any regulatory measure that can have a trade restrictive effect, includingmeasures of quantitative restriction on the importation or exportation of goodsby investors.93 While this generally constrains the regulatory capacity of hoststates, including their ability to regulate land deals as suggested under theWorld Bank Principles, it supports the discourse base of inventors for free-dom/autonomy of investment operations. One of the policy prescriptions ofthe World Bank is the design of strategies to tackle instability or shortage offood supply in local markets. Here the most commonly used safeguard strategyis 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 WorldBank Group (2011b), available at: <http://www.oaklandinstitute.org/land-deal-brief-role-world-bank-group>, accessed 13 March 2013.93 Agreement on Trade-related Investment Measures (1994), Article 2.




which, however, is prohibited under the TRIMs Agreement of the WTO except intimes of food crisis.

Although Ethiopia is not yet a full member to the WTO, and thus notcurrently bound by terms of the TRIMs Agreement, the BITs it has signed withseveral home countries of investors are even more constraining than the TRIMsAgreement. In almost all the BITs signed by Ethiopia, investors are entitled to“investment freedom” defined as a protection against host state intervention inthe management, operation, maintenance, use and enjoyment of investments.94

This forms a key discourse base for investors in challenging regulatory interven-tions including requirements of local employment, local supply of outputs,technology transfer, provision of public goods and other prescriptions suggestedunder the World Bank Principles.

In fact, most BITs signed by Ethiopia define expropriation of investmentproperty very broadly to include any loss of investment interests as a result ofstate’s regulatory measure – what is commonly referred to as “indirect taking ofinvestment property” or “regulatory taking”.95 Hence, the country holds aresponsibility of paying compensation for any loss of corporate interests result-ing from its application/enforcement of a regulatory measure, even if it isprimarily meant to promote public interest. This is not a simple theoreticallimitation to the regulatory capacity of Ethiopia as a host state, especiallyconsidering the fact that several other host states have been held liable in thepast based on a similar clause.96

Most BITs signed by the government of Ethiopia also entitle multinationalcorporations with a treatment that is no less favourable than that provided fordomestic investors in all aspects of investment undertakings including in themarketing of products outside the country. This makes it hardly possible for thecountry to regulate multinational corporations separately from small and med-ium sized domestic investors, for instance those engaged in large-scale agrofuelproduction, despite the difference in their welfare impact and the need forprotection of infant local industries.

In general, the World Bank Principles are neither coherent nor the onlypiece of international norms governing investments in farmland; other ideolo-gically competing international norms also exist which entitle investors with abetter base of claim and discourse against state’s regulatory measures – allow-ing 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.




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

4.2 FAO Voluntary Guidelines

The Voluntary Guidelines on the Responsible Governance of Tenure, endorsed bythe Committee on World Food Security in May 2012, is another recent initiative forthe regulation of large-scale agricultural land transfers. They result from a seriesof multi-stakeholder consultations among regional and international organiza-tions, 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 characterizedof being “inextricably linked with access to and management of other naturalresources”.97 This is an important innovation as the loss of local land use rightsbrings a wide range of consequences in terms of loss of access to various othernatural resources, including water, fisheries, forest woods and others, on whichlocal livelihoods depend.

The Guidelines start with an explicit recognition of the possible coexistenceof different forms of tenure – statutory and customary, formal and informal –despite its prevalent non-recognition by states. They call for non-infringement ofrights emanating from customary or informal tenure systems by states, whichindeed is at the heart of the problem around land deals.

However, similar to the World Bank Principles, the approach adopted in thepolicy prescriptions remains legally centralistic wherein states are regarded askey actors in the governance of land in general, and thus, in the move towards aresponsible and efficient market transfer of land to investors. This can beinferred from the lesser attention paid to the role of non-state actors, includingtraditional institutions, in the local governance of land; while a long list oflegislative innovations are suggested for states to carry out so as to bring a non-discriminatory, equitable, sustainable, transparent and accountable markettransfer of land rights to investors.

Such an approach simplifies problems around land deals into a mereregulatory failure which thus is assumed to be within the regulatory control ofstates and less a socio-institutional issue. Accordingly, the Guideline entrustsstates with a responsibility of reforming their legal and organizational frame-works and also devising their regulatory policy instruments in a way that

97 Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries andForests in the Context of National Food Security (2012), Preface.




safeguards the land rights and food security concerns of local communities inthe continued future of large-scale land transfers.

The Guidelines also call on Transnational Corporations not to infringe orabuse the legitimate tenure rights of others, in particular local communities.However in the context of current land deals, investors mostly do not act with anintention of directly infringing/abusing the land rights of local people. Theyrather acquire a statutorily “legitimate” land rights from the state; exercisingthese rights does, however, often result in encroachment of land use rights oflocal people who have competing claims over the same land. Hence, at the heartof the problem is not a direct infringement of local land rights by investors, butmisappreciation/invisibilization of local claims by the state, and thus transfer oflands which are being used by local communities to investors as if they are “freeof any claim” – inevitably causing conflict of interests.

Besides, the Voluntary Guidelines put strong emphasis on the need to keepconsistency between indigenous rules on customary tenure and national statelaws, as well as between state laws and the international law – a legal centralisticconception of consistency and hierarchical incorporation among rules in differentsocial spaces. This does not, however, hold true in a legal pluralistic view of “rulesin use” where lack of coherence and uniformity, leading to conflict and negotia-tion, exists not only between rules in different social spaces but also among rulesemanating from the same social space. Hence, what is important in the context ofland rights is to increase the visibility and negotiating capacity of weaker groupsso 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 andinternational laws while transferring land to investors. Yet, as repeatedly men-tioned in this paper, laws are not always equitable in their own right; they areresults of a political process and thus reflection of power asymmetry in socio-institutional processes. Indeed, most states do not act in contravention ofstatutory laws when transferring land to investors; they rather make use ofalready existing laws which are biased against weak and socially excludedgroups. As such, it is worth underlining that compliance with laws does notnecessarily guarantee equity and social justice in practice.

4.3 Core principles and measures to address human rightschallenges of large-scale land acquisitions

Another international response to the challenges of large-scale land deals is theformulation of a set of core international principles by Oliver De Schutter,




Special Rapporteur of the UN on the Right to Food. These principles aredesigned to develop a human rights–based approach to land deals.98 They aredeveloped 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 WorldBank (and FAO) guidelines and recommends holding states responsible for theirobligations under existing international human rights instruments which imposesome level of state accountability.99 It calls on states to respect and fulfil theirhuman rights obligations towards citizens, particularly those rights relevant tocurrent land deals including, among others, the right to food, the right todevelopment, the right to self-determination and exploitation of naturalresources by local populations, the right of indigenous people over traditionallyowned lands, as well as labour rights of agricultural workers.

It also recognizes weaknesses of the World Bank and FAO guidelines inpresenting blueprint policy prescriptions as measures sufficient to redirect large-scale land transfers into a win-win outcome. As such, it suggests a list of guidingprinciples which are “minimum principles in the sense that a large-scale invest-ment in land will not necessarily be justified even though it may comply withthe various principles listed”.100 Hence, unlike the code of conduct approach ofthe World Bank and FAO, the human rights–based approach does not simplifyproblems into mere investment externalities which can be sufficiently addressedthrough state regulatory measures. It indeed goes beyond the superficial pro-blems on the technicalities of land deals and touches on some intrinsic/struc-tural 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 betterregulate agreements on large-scale land acquisitions or leases without addres-sing also, as a matter of urgency, [the] circumstances which makes such agree-ments look like a desirable option”.101

However, such human rights–based approach shares some common flawswith the voluntary guidelines of the World Bank and FAO, especially whenexamined from a legal pluralistic perspective. The most important of suchflaws are its purely rights-based legal orientation as well as its excessive focuson 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 toAddress the Human Rights Challenge (2009), Paragraph 6.




As the name itself indicates, the human rights–based approach is a purelylegal/state-based approach whose relevance in the context of current land dealscan be put into question given the predominant operation of social power andnegotiation, rather than that of legal entitlement, in the politics of land rela-tions. Its relevance becomes more uncertain when looking at it from a socio-institutional perspective in that “rights cannot be enforced so long as thefundamental inequalities [or power asymmetries] in which social relations aregrounded remain intact”.102 Hence, a focus on legal rights does not fully touchthe core socio-institutional or relational problems underlying land deals, andthus promises no fundamental change on its own – a call for restructuring insocio-institutional processes as a precondition for successful operationalizationof legal entitlements of weaker groups.

The other flaw of the human rights–based approach relates to its state-centric disposition wherein almost all of the prescribed principles call host statesto take one or another measure to minimize the human rights challenges. Assuch, all the critics made about the practicability of a top-down or state-centredlegislative engineering for social change also applies here. After all, the mini-mum human rights principles can be viewed of being another list of blueprintstandards whose realization on the ground heavily depends on the political willand institutional capacity of host states. In the words of Li the minimum humanrights principles are “still limited to a technical fix: [whose] tools are naming,shaming and enjoining relevant authorities to be proactive in the protection ofrights… [which however] cannot change the political economic context thattranslates paper rights into real ones”.103 Indeed, most of the human rightsprinciples and state measures suggested by De Schutter have already beencovered under pre-existing and largely accepted international instruments,including the International Covenant on Economic, Social and Cultural Rightsof the UN, whose realization on the ground is, however, a long-standingproblem.

5 Concluding remarks

Core problems around large-scale land transfers are more underlying than justmarket risks or implementation challenges. Some are partly structural in that

102 B. Cousins, Capitalism Obscured: The Limits of Law and Rights-Based Approach to PovertyReduction and Development, 36 Journal of Peasant Studies, no. 4 (2009), 893–908, at 901–902.103 Li (2011), supra note 12, p. 292.




they are intrinsic to the very export-oriented, agrofuel-driven or speculativecharacter of recent investments which are manifestations of commodificationof land and a shift away from local to extra-territorial concerns. This is particu-larly the case in Ethiopia where most land transfers are destined for the produc-tion of either agrofuel feedstocks or exportable cash crops.

Other problems underlying large-scale land deals are relational in character inthat the land transfer process is dominated by a few actors which largely excludelocal communities and renders their claims less visible in the negotiating arena.Particularly in Ethiopia, the state plays a hegemonic role in the governance ofland in general and the transfer of rural land to investors in particular with itsstatutory ownership of all lands and other natural resources in the country. Thestate mainly relies on its laws in its conduct which give very limited and insecureland rights to pastoralists while empowering the state to convert communal landsinto private holding on its discretion. The state also makes use of its discourseabout “idle” or “unused” land whereby all land which is not actively being usedfor settled cultivation is easily labelled as “idle” and thus made available forinvestment transfer. This places pastoral communities, especially those in thesouthern lowland part of Ethiopia, in a vulnerable position with their customaryland use rights falling short of state recognition, and thus exposing them todispossession without consultation or compensation. It is such power- and dis-course-based domination of the state in the process of effecting land transfers aswell as the resulting invisibilization of local claims and loss of livelihoods whichis the underlying relational problem around land deals in Ethiopia.

In ordinary cases of investment, state regulatory frameworks play someundeniable role in controlling investment undertakings. However, recent landrushes cannot be equated with ordinary investments since such land rushes aredriven by factors that are well-beyond conventional investment interests, suchas extra-territorial food, energy and financial security concerns which are struc-turally disadvantageous to local interests. Addressing challenges of such landdeals thus necessitates policy interventions which go beyond the traditionalscheme of regulating investments through state legislations and corporatecodes of conduct. Indeed, at the heart of the problem being loss of access toland and security of tenure by local communities, which is a social as much as alegal matter, state regulation cannot be used as a panacea. Also, active involve-ment of the state in legitimization of large-scale land transfers and invisibiliza-tion of local claims erodes the trust that the state alone can bring the necessarysocial change, which therefore reduces the credibility of a state-centred regula-tory approach in effectively addressing challenges of land deals.

From the analysis of the different international initiatives taken lately to reg-ulate large-scale land transfers, this study concludes that almost all the principles




and guidelines proposed so far are legally centralistic or state-centric in formulationwhereby a list of blueprint standards are prescribed as a panacea, whose realizationismade dependent on the willingness and capacity of states effecting such transfers.Realization of most of the policy prescriptions is also constrained by the prevalenceof other ideologically competing principles in the international legal order– creatinga room for manoeuvre and forum shopping in favour of investors. Indeed, neitherthe state nor international actors like that of the World Bank are monolithic incharacter, and thus rules emanating from any of them are neither coherent in theirown right nor automatic determinants of social change on the ground.

In general, although legal empowerment of local communities, throughformalization 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 withunderlying problems of recent land transfers resulting from unequal power andexclusion. Hence, what is more pressing than legal empowerment is the need forsocial empowerment – restructuring of the power balance in socio-institutionalrelations more in favour of local communities so that their claims become morevisible in the negotiating arena.

To this end, initiatives being taken by international development agents toaddress challenges of large-scale land transfer need to transcend well beyondthe designing of blueprint standards. Such initiatives should rather try to iden-tify and redress underlying socio-institutional forces which always put the poorat the losing end of the bargain. This includes enhancing the voice/agencypower of the local poor as well as changing the existing socio-institutionalpower asymmetries, so that local communities can become more visible andtheir rules more applicable/influential in negotiations. Civil society organiza-tions and the media can play a similar role in bringing to light the claims of localcommunities, and acting as watchdogs to state power.

Further research is needed to more specifically understand the relationaldynamics among the different actors around land deals and the rules in use onthe ground, which is important to better answer key questions such as who winsand losses from the process of land deals and to come up with context-basedand appropriate policy recommendations about the way to enhance effectiveagency and voice of local groups.

References

Anseeuw, W., L.A. Wily, L. Cotula and M. Taylor, “Land Rights and the Rush for Land: Findings ofthe Global Commercial Pressures on Land Research Project”, Report, International LandCoalition (2012), available at: <http://www.landcoalition.org/sites/default/files/publication/1205/ILC%20GSR%20report_ENG.pdf>, accessed 26 August 2012.




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: APreliminary 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: <http://www.ibcperu.org/doc/isis/13570.pdf>, accessed 25 August2012.

Cotula, L., Land Deals in Africa: What Is in the Contracts? (London: International Institute forEnvironment and Development, 2011b).

Cotula, L., The International Political Economy of the Global Land Rush: A Critical Appraisal ofTrends, 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 PovertyReduction and Development, 36 Journal of Peasant Studies, no. 4 (2009).

Daniel, S.,“The Role of the International Finance Corporation in Promoting AgriculturalInvestment and Large-Scale Land Acquisitions”, Conference Paper, IDS (2011), available at:<http://www.iss.nl/fileadmin/ASSETS/iss/Documents/Conference_papers/LDPI/90_Shepard_Daniel.pdf>, accessed 28 August 2012.

Deininger, K., Challenges Posed by the New Wave of Farm Investment, 38 Journal of PeasantStudies, no. 2 (2011).

Deininger, K. and D. Byerlee, Rising Global Interest in Farm Land: Can It Yield Sustainable andEquitable Benefits? (Washington, DC: The World Bank, 2011).

Deininger, K. and D. Byerlee, The Rise of Large Farms in Land Abundant Countries: Do They Havea Future? 40 World Development, no. 4 (2012).

De Schutter, O., How Not to Think of Land-Grabbing: Three Critiques of Large-Scale Investmentsin 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: <http://www.landcoalition.org/sites/default/files/publication/1021/EDC_Ethiopia_web_11.03.11.pdf>, accessed 28 August2012.

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).




Meinzen-Dick, R.S. and R. Pradhan, Legal Pluralism and Dynamic Property Rights, WorkingPaper, No. 22 (Washington, DC: IFPRI, 2002).

Merlet, M.,“Land Policies and Agrarian Reforms”, Proposal Paper, AGTEG (2007), available at:<http://www.agter.asso.fr/IMG/pdf/Merlet_2007_11_Land-Policies-Proposal-Paper_EN-pt.pdf>, accessed 26 August 2012.

Merlet, P. and J. Bastiaensen, Struggles over Property Rights in the Context of Large ScaleTransnational 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 OneAnother (Cambridge: Cambridge University Press, 2001).

Moore, S.F., Law and Social Change: The Semi-Autonomous Social Field as an AppropriateSubject of Study, 7 Law and Society Review, no. 1 (1973).

Ostrom, E. and M. Cox, Moving Beyond Panaceas: A Multi-Tiered Diagnostic Approach forSocial-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, SocialNorms and Economic Development (Amsterdam: Oversees Publishers Association, 2002).

Rahmato, D., Land to Investors: Large-Scale Land Transfers in Ethiopia (2011), available at:<http://www.landgovernance.org/content/short-term-research-2011-small-grants-pro-gramme>, accessed 23 May 2012.

Scott, J.C., Domination and the Arts of Resistance: Hidden Transcripts (London: Yale UniversityPress, 1990).

Sornarajah, M., The International Law on Foreign Investment (2nd ed., New York: CambridgeUniversity Press, 2004).

Stebek, E.N., Between “Land Grabs” and Agricultural Investment: Land Rent Contracts withForeign 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 WorldBank Group”, Land Deal Brief (2011b), available at: <http://www.oaklandinstitute.org/land-deal-brief-role-world-bank-group>, 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, andCompromise in Large-Scale Land Deals for Biofuels Projects in Africa, 37 Journal of PeasantStudies, no. 4 (2010).

Von Benda-Beckmenn, F. and K. Von Benda-Beckmenn, The Dynamics of Change and Continuityin Plural Legal Orders, 53/54 Journal of Legal Pluralism (2006).

Von Braun, J. and R. Meninzen-Dick, Land Grabbing by Foreign Investors in DevelopingCountries: Risks and Opportunities (IFPRI, 2009).

White, B., S.M. Borras, R. Hall, I. Scoones and W. Wolford, The New Enclosures: CriticalPerspectives 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 ofAgrarian Dispossession in the Current Global Land Rush”, Conference Paper, IDS (2011),available at: <http://www.iss.nl/fileadmin/ASSETS/iss/Documents/Conference_papers/LDPI/74_Liz_Wily.pdf>, accessed 28 August 2012.




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 InternationalFrameworks to Regulate Large-Scale Landand Water Acquisitions in Sub-SaharanAfrica?

Abstract: This paper explores the use of international governance frameworks asbeing one of the ways to regulate large-scale land acquisitions (LSLAs). LSLAsare currently flourishing in both developed and developing countries, in parti-cular in the sub-Saharan Africa region. Although they can potentially have manypositive impacts in rural areas, many LSLAs have been shown to mainly producenegative impacts in poor countries with weak national policy and institutionalframeworks and poorly defined rights for rural people. To successfully regulatethe occurrence of LSLAs and their impacts, it needs to be understood that LSLAsare more complex than they are usually portrayed as being. Some of the com-plexities pertain to water issues; provenience of investors; legality and legiti-macy of acquisitions; as well as the diversity of actors and the people affected.Against this background, five international frameworks are looked at: humanrights, voluntary international guidelines, international global water governanceregimes and bi-/multilateral river treaties, and voluntary private standards andcodes. The paper concludes that the frameworks reviewed provide valuableguidance regarding LSLAs, but no single approach can help in dealing withthe multitude of actors, situations, and impacts of LSLAs. Even if they areconsidered collectively, they can tackle many but not all challenges. Yet, their

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




implementation could substantially improve the process and the impact ofLSLAs, including their refusal. A key question is how these frameworks aredeployed at the local level. Some rely on translation into national laws and ontheir implementation, others try to establish a direct linkage between the inter-national and the local level. It is of great interest to study how internationalframeworks trickle down to local policy arenas, how they are used by stake-holders, and how they are finally shaping conflicts at the local level andaffecting their results. In particular, their potential for empowering poor stake-holders should be of interest for research and development.

Keywords: land and water acquisitions, international frameworks, sub-SaharaAfrica

DOI 10.1515/ldr-2014-0013

1 Introduction: large-scale land acquisitions andthe call for regulatory approaches

The current wave of large-scale land acquisitions (LSLAs) – appropriations oflarge tracts of land by grabbing, purchasing, or leasing it, or via other mechan-isms – is being driven by many factors and actors. There is no doubt that LSLAspotentially have as many negative implications for the populations affected andfor the societies as a whole – including impacts on poverty, food security,migration, security, conflict, and even state integrity – as they have positiveones.1 However, though initial reporting on LSLAs has been marked by activismrather than by methodological rigor,2 there is ample evidence to suggest that, infact, the negative effects of LSLAs are overwhelming. Prominent scientific con-ferences 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 PotentialDevelopment Effects of Foreign Direct Land Investments, 20 Technikfolgenabschätzung – Theorieund 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 <http://www.future-agricultures.org/index.php?option=com_content&view=category&layout=blog&id=1547&Itemid=978>, accessed 19 September 2013.4 <http://www.future-agricultures.org/land/7669-call-for-papers-land-grabbing-conference-october-2012-usa#.UjpA2H9gScM>, accessed 19 September 2013.

434 M. Brüntrup et al.



Washington, DC5) have assembled a massive number of negative cases and con-sequences of the observed acquisition practices. Nonetheless, there is some scat-tered evidence on the positive impacts of large longer-term investment schemesbased 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 orfind them seriously threatened; lose access to water, pastures, and/or forests.They do not find alternatives, at least in the short term, because most invest-ments only materialize slowly (if at all), and often do not create the kinds of jobsthat could be performed by those households that are obliged to abandon theirland. Individual compensation is not granted, is very low or is not paid; estab-lishing adequate livelihood alternatives is often not feasible; the leasing andpurchasing prices of land do not reflect its productive value for the farmers; andthe 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 2008Landgrab for Food And Financial Security (October 2008), available at: <http://www.grain.org/article/entries/93-seized-the-2008-landgrab-for-food-and-financial-security>, accessed 6 May2013; much more evidence has been collected and presented since then, e.g. conference 2012<http://www.landandpoverty.com/>, accessed 19 September 2013, and conference 2013 <http://econ.worldbank.org/WBSITE/EXTERNAL/EXTDEC/EXTRESEARCH/EXTPROGRAMS/EXTIE/0,,contentMDK:23278099~pagePK:64168182~piPK:64168060~theSitePK:475520,00.html>, accessed19 September 2013.6 E.g. E.T. Kennedy, The Effects of Sugarcane Production on Food Security, Health, and Nutritionin 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-scaleAgricultural Investments: Insights from Sugarcane Outgrower Schemes and Estate Employment inMalawi, paper presented at the Annual World Bank Conference on Land and Poverty(Washington, DC, 8–11 April 2013), available at: <http://www.conftool.com/landandpov-erty2013/index.php/Herrmann-368_paper.pdf?page=downloadPaper&filename=Herrmann-368_paper.pdf&form_id=368&form_version=final>, accessed 6 May 2013.7 E.g. K. Deininger and D. Byerlee, Rising Global Interest in Farmland: Can It Yield Sustainableand Equitable Benefits? (Washington, DC: World Bank, 2010); FAO, Trends and Impacts ofForeign Investment in Developing Country Agriculture – Evidence from Case Studies (Rome,2013); C. Schaffnit-Chatterjee, Foreign Investment in Farmland. No Low-hanging Fruit, DeutscheBank research (Frankfurt a. M., November 2012), available at: <http://www.dbresearch.com/PROD/DBR_INTERNET_EN-PROD/PROD0000000000296807/Foreign±investment±in±farmlandpercent3A±No±low-hanging±fruit.PDF>, accessed 9 February 2013.

What Can Be Expected from International Frameworks? 435



products, pasture, and water access. Access to remaining free lands can becomemore difficult if rural roads and pathways are interrupted or if distances arelonger to the fields that farmers received as compensation. Promised socialinvestments, such as in schools, public health, and infrastructure, are notrealized, or only after long delays, depending on the profitability of the invest-ment. If projects fail – and there is growing evidence that such failures are thenorm rather than the exception – new problems arise: The people affected haveto find new jobs; they might possibly have to return to agriculture; socialprojects are not continued; new investors may take over, resulting in consider-able delays; and uncertainties develop regarding the rights to the abandonedland and other resources.8 Land redistribution may take place but opens up newopportunities for corruption and rent-seeking. In some cases, former customaryland leased out to large investors is not returned to the communities but to thecentral government.9 All this happens not only in countries with weak landgovernance but also in countries that are supposed to have well-establishedland tenure systems (cf. Alden Wily, this issue).

There is, thus, an urgent need to regulate such investments in a way thatlocal 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 beacknowledged that there are many forms of LSLAs, and each is a very complexoperation. As a result, LSLAs are much more diverse than they are usuallyportrayed as being in the media and in individual reports. Powerful but partlyinaccurate narratives have been formulated that tend to focus on only a fewaspects, thus ignoring the complexities and ambiguity of LSLAs. They lead toinadequate policy prescriptions for their control and thus need to be criticallyexamined and re-designed to lead to more thorough and realistic analyses of thephenomenon and potential remedies.10

8 M. Richards, Social and Environmental Impacts of Agricultural Large-scale Land Acquisitions inAfrica – 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 inLand (Oxford, 2011); L. Cotula, The Great African Land Grab? Agricultural Investments and theGlobal Food System (London/New York: Zed Books, 2013); S. Vermeulen and L. Cotula, Over theHeads of Local People: Consultation, Consent, and Recompense in Large-scale Land Deals forBiofuels 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 byInvestors: 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.




Before looking at these issues, a few words need to be said about the extentof the LSLA phenomenon – or better, the lack of knowledge about how it isactually spreading.11 Several significant attempts have been made to assess thedimensions 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 about50–60 million hectares. The most recent calculations of the Land Matrix data-base – which presents arguably the most systematic and neutral attempt todocument LSLAs and has served as a database for many secondary researchpublications – show that there are about 32.9 million hectares for which a dealhas been concluded in 828 cases, and 14 million hectares for which a deal isintended13; 71 deals involving 5.6 million hectares were found to have failed. Thebulk of the LSLAs are for agriculture (25 million hectares), and regionally most ofthem target Africa (60%), more precisely sub-Saharan Africa. However, severalattempts to use databases on LSLAs as the bases for case study selection haveshown that very few projects have started to be implemented (i.e. clearing andcultivating the land) and that many investments have stopped but not (yet) beendeclared a failure – thereby rendering their futures to be uncertain.14 Olderexamples of large-scale farming show that it typically takes years or evendecades to establish farms with a size of more than 1,000 hectares of arableland.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 flawsof 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: <http://landportal.info/landmatrix>, accessed 19 September2013; GRAIN, available at: <http://farmlandgrab.org/>, accessed 6 May 2013; C. Friis and A.Reenberg, Land Grab in Africa: Emerging Land System Drivers in a Teleconnected World, GlobalLand Project-International Project Office (GLP-IPO), GLP Report No. 1 (University ofCopenhagen, 2010); Deininger and Byerlee (2010), supra note 7; Oxfam (2011) supra note 9.13 Land Matrix, <http://www.landmatrix.org/>, accessed 19 September 2013; compare W.Anseeuw et al., Transnational Land Deals for Agriculture in the Global South, analytical reportbased 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 GermanDevelopment Institute, personal communication), Linda Engström for Tanzania (SwedishEnvironment Institute, personal communication), W. Anseeuw for Mozambique (CIRAD, perso-nal communication).15 Cotula (2013) supra note 9 for sugar plantations in Zambia; more generally Deininger andByerlee (2010) supra note 7.




The reported differences on LSLAs partially result from variations in meth-odology, such as the definition of “large”; the periods under consideration;whether only new acquisitions are covered; in which stage of a transfer thedeals are; whether deals result in the acquisition of community and small farmland and/or also the transfer of large farms; whether documentation focuses onforeign and/or national investors, and the various types of investors; andwhether they consider acquisitions only for farming, or also for mining, natureconservation, tourism, and carbon sequestration, for example. Most importantly,differences originate due to the sources of information used as well as theiraccuracy and quality. In most African countries, reliable data are not availablebecause governments are not able, or do not record and report on LSLAs. Thus,assessments rely on media, crowd intelligence, sporadic statistics, and one-offsurveys. Because the lack of reliable information applies to many issues, theknowledge gaps make it relatively easy to shape the interpretations and narra-tives about LSLAs in politically desirable ways, for example by exaggerating ortrivializing land-grab statistics and using anecdotal evidence, an unbalancedselection of case studies and the arbitrary interpretation of partial data.Edelman16 talks of the risk of a “delegitimizing impact of making spuriousclaims.”

The remainder of this paper is organized as follows: Section 2 presentscomplexities that are often overlooked or simplified in the international debate;Section 3 sketches out what international frameworks that were reviewed couldcontribute toward the regulation of LSLAs. Section 4 finally concludes by pre-senting our findings and points to policy implications.

2 Four major challenges for regulatoryapproaches to LSLAs

Beyond the fact that there are serious developmental challenges concerningLSLAs – and that the knowledge base on LSLAs is unorganized and biased –some other proposals can be extracted from the literature that show how com-plex they actually are. In the following sub-sections, we discuss how thesecomplexities prove to complicate any regulatory attempts. Without beingexhaustive, we have carved out four major challenges for regulatory approachesto LSLAs.

16 Edelman (2013) supra note 12.




2.1 Water issues associated with LSLAs

“Behind every land grab is a water grab” argues a publication by one of the mostactive non-governmental organizations working on LSLAs.17 In fact, for agricul-tural purposes investors are looking for land that is either blessed with adequaterainfall (green water) or that has access to a water source for irrigation (bluewater). Clearly, blue water is the hotter topic. Since only 2% of its water resourcesare used, the African continent has a huge “untapped potential” for irrigatedagriculture.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 water-related provisions.19 In addition, cumulative water extraction cannot be dealt within individual deals: For instance, in Mali, the government has leased out morewater than is available.20 Similarly, negative impacts from LSLAs are also fearedin the Nile basin and in southern Africa. It is speculated that internationaltensions may rise due to water appropriations for large tracts of land acquired.Not surprisingly, the water community has termed the phenomenon “water grab-bing.”21 Commercial farm operations may also spoil water quality, for instance,when drainage canals from irrigated fields transport effluents enriched withnutrients and other chemicals back to irrigation canals or to natural watercourses.And they can impair the quantity and quality of groundwater resources and affectusers thereof. Although the issue is evident and briefly mentioned in manyreports, it has only slowly been taken up in research.22 For regulation, it impliesthat more actors and additional institutions and organizations are – and have tobe – involved than just the “land people.”

17 GRAIN, Squeezing Africa Dry – Behind Every Land Grab Is a Water Grab (Barcelona, June2012), p. 3.18 C. Smaller and H. Mann, A Thirst for Distant Lands: Foreign Investment in Agricultural Landand Water, Foreign Investment for Sustainable Development Program, International Institute forSustainable 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 theOffice 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? Focuson 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: <http://www.newscientist.com/article/mg21729066.400-splash-and-grab-theglo-bal-scramble-for-water.html>, accessed 19 April 2013.




2.2 Origin of investors: foreign or domestic?

A strong focus on foreign investors is discernible in the international debate aswell as in the data collected on LSLAs.23 However, a few rigorous and in-depthstudies show that the share of national investors, both in terms of their numberand the land acquired, might be much higher than that of international ones. Forinstance, 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 longhistory of LSLAs) showed a significantly lower total with 7%. A few sources witha specific focus on this issue confirm a strong presence of national investors; theland which they acquire is typically smaller in size.25 There may be linkages andoverlap of national and international investors, for instance through the creationof local enterprises by international actors or joint ventures with nationals. Yet,international attention, databases, and research seem to neglect national invest-ments, possibly due to the lack of data as well as for political reasons.26 Theimportance of the distinction between both types of investors for regulation is:that the political economy is strongly altered if local – not foreign – elites are tobe regulated; that some instruments make strong distinctions between foreignand national investors; and that public attention will be markedly different –usually lower – for national investors, with the exception of a few (politicallysensitive) cases, such as when high-level politicians and authorities are involvedand when a free press or party politics take up cases.

23 E.g. L. Cotula et al., Land Grab or Development Opportunity? Agricultural Investment andInternational 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 andOpportunities (Washington, DC: IFPRI, 2009); FAO, From Land Grab to Win-Win. Seizing theOpportunities of International Investments in Agriculture (Rome, 2009a); P. Burnod, M.Gingembre and R. Andrianirina, Competition over Authority and Access: International LandDeals 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 FarmlandAcquisitions by Domestic Investors in West Africa. Results from a Survey in Benin, Burkina Fasoand Niger, unpublished paper by the Royal Tropical Institute and SNV (April 2011), p. 10,available at: <http://m.snvworld.org/sites/www.snvworld.org/files/publications/agrarian_change_under_radar_screen_kit_snv.pdf>, accessed 6 May 2013; Cotula et al. (2009), supranote 23; Cotula (2013) supra note 9.26 Scoones et al. (2013) supra note 2. Dwyer states that “the currency of the phrase ‘the globalland grab’ already testifies to civil society’s success in making transnational land access anexplicitly political issue”, in M.B. Dwyer, Building the Politics Machine: Tools for ‘Resolving theGlobal Land Grab, 44 Development and Change, no. 2 (2013), 309–333, at 314.




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 usersin any such deal. Apart from the obvious advantages of using the term forcertain purposes, such as drawing public attention or scandalizing a specificdeal or all such deals, closer scrutiny shows that any use of the term reveals ahighly problematic area of LSLAs: To whom do the land and water use rightsbelong, and who governs them? More generally, what is legal, what is legiti-mate, what is just, and who decides on these questions? In many countries insub-Saharan Africa, according to state law, land generally (more than 80%)belongs to the state (cf. Alden Wily, this issue), which has the authority todecide on the devolution of use rights and on the decision-making units (dis-tricts, local communities, traditional authorities, and individuals).27 In addition,there is a plethora of local, “traditional” rights that are not necessarily compa-tible with each other and that have evolved over time and under internal andexternal influences, for instance through population pressures, technology,religion, and migration. The economic efficiency as well as the social andpolitical effects of these traditional systems under changing conditions are notnecessarily satisfactory.28 On the other hand, state-led transformations of thesystems are found to have been abused and often lead to – whether intended orunintended – negative or unsatisfactory outcomes.29 Beyond the problemswithin each legal realm – state and traditional, it can be stated that the inter-action between both compounds the complexity of land governance. The inter-action depends inter alia on power, information, and the value attributed to theresource.30 More concretely applied to LSLAs and their impacts, questions thatarise include: Can states actually acquire land legitimately and reallocate it to

27 L. Alden Wily, Governance and Land Relations: A Review of Decentralisation of LandAdministration and Management in Africa (London: IIED, 2003); W. Wolford et al., GoverningGlobal 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: ACritical 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, LandRegistration, Governance, and Development: Evidence and Implications for Policy, 24 The WorldBank Research Observer, no. 2 (2009), 233–266; D.W. Bromley, Formalising Property Relations inthe 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.




investors? Are the traditional chiefs the custodians of the land, or is it thecommunity as a whole? Does legitimacy depend on the quality of governance,on justice, on socially acceptable impacts, on accountability, and on participa-tion? 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 andgovernance of land tenure in rural areas directly leads to another difficulty increating regulatory frameworks for LSLAs: Communities in rural areas are nothomogeneous. Instead, there may be a dominating ethnic group with membershaving no equal rights and interests. Some people, particularly younger ones,may want to have formal jobs away from the farm, whereas others may prefer toremain independent. Larger farmers may want to produce via contract, and verysmall ones may not be able to benefit due to production constraints. Farmersmay want to cooperate, whereas herders or fishers might only see disadvan-tages. Some minority and weaker actors within local communities tend to bemarginalized in one and/or the other tenure system: livestock herders, particu-larly transhumant and nomadic ones; fishers; minority ethnic groups; migrantfarm families (even after many generations); young people; and women. InLSLAs and investment projects, there are losers and winners. The environmentas well as hunters and gatherers may suffer, but wage jobs (albeit of verydiverging quality – from low-paid day labor to well-paid permanent white-collarand technical jobs) are created. Local economies may thrive after some years,with growth eventually trickling down, but again not everyone may profit, andimmigrants might compete with the local population.

Women may be marginalized under current conditions as well as by LSLAsand with regard to compensation.31 In many traditional societies, women haveno equal rights to own, transfer, and inherit land. Often, they depend on theirfamily, husband, and/or relatives to access land. On the other hand, they oftenhave 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 andcustomary 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, presentationat the 2013 Law and Development Conference “Legal and Development Implications ofInternational Land Acquisitions” (Kyoto, Japan, 31 May 2013).




scarcer, and closed tracts of land may also cut them off physically from access toresources beyond the concessions. Large farms may also cut them off from waterresources or render their access more difficult. Thereby women lose access tonatural resources. When LSLAs restrict access to land, women are forced toforage through less fertile parts of the remaining land. On the other hand, theymay also find jobs on the plantation, in the processing industry or in the thrivinglocal economy by providing services in the food and retail sectors, for example.They could also profit through social projects such as the provision of betterwater supplies and health stations, which can be part of LSLAs contracts ascompensatory measures. Children may get better schools. Whose rights andinterests count more, and how are they balanced in case of conflicts (whichwill almost certainly arise)?

The following section presents relevant international frameworks that arebelieved to contribute toward the better regulation of LSLAs. Some work bybeing adapted to national circumstances and by becoming part of nationallegislation; others directly interact with local actors and dispose of disputesettlements at the international level. One recurrent aspect of the review is toanalyze how the complexities identified affect the performance of theframeworks.

3 International legal instruments relevant toLSLAs – scope, challenges, and limits

In this section, we scrutinize the most important international legal frameworksrelevant to LSLAs and briefly assess the opportunities they offer as well as theirlimitations. We give special regard to the consequences of the complexities andchallenges described in Section 2 and to what such a broader understanding ofLSLAs implies for the effectiveness of the frameworks.

The relevant frameworks identified encompass human rights, voluntaryinternational guidelines, international investment treaties, international globalwater governance regimes and bi-/multilateral river treaties, and voluntaryprivate standards and codes. This list may not be exhaustive, concentrates onsocial (rather than environmental) regulations, and the voluntary private stan-dards and codes in particular are, in reality, a broad bundle of instruments thatcan be very different in terms of scope of issues covered, ambitions, and theextent of countries and actors involved. We do consider World Bank and otherpublic financial institution standards for private investor clients under privatestandards since they only apply to investors willing to accept them for getting




funds for private investments. We do not consider conditionalities of WorldBank and International Monetary Fund policy lending since they are rarelylinked to land governance and only apply if policy lending is provided; we doalso not consider binding World Trade Organization trade rules which would betreated under binding international treaties such as investment treaties. Also,environmental international treaties are not considered since they are lessimportant for the land transactions per se but for business operations andrelated land use changes (which nevertheless have an impact on the investmentand production model and, thus, profitability and indirectly on social andeconomic impacts). However, it is a first attempt to look at these issues inparallel with a common target and to assess their effectiveness in steeringLSLAs in poor countries.

3.1 Human rights

There are several human rights issues relevant to LSLAs: the right to develop-ment, to self-determination, to food, to water, to housing, the special rights ofindigenous and tribal peoples, and labor rights, to name the most relevantones.32

The human right to adequate food is probably the most fundamental ofthese rights. It has been recognized in different international instruments, mostnotably the Universal Declaration of Human Rights; the International Covenanton Economic, Social and Cultural Rights (ICESCR); the Convention on theElimination of All Forms of Discrimination Against Women; and theConvention on the Rights of the Child. The United Nation’s Special Rapporteuron the Right to Food, Olivier de Schutter, has characterized the effects of theright to food as follows:

Under Article 11 of the ICESCR,33 every State is obliged to ensure for everyone under itsjurisdiction access to the minimum essential food which is sufficient, nutritionally ade-quate and safe, to ensure their freedom from hunger. The obligations of the State arethreefold: to respect, protect and fulfill the human right to food. The State is obliged torefrain 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 andMeasures to Address the Human Rights Challenge (June 2009), available at: <http://www.srfood.org/images/stories/pdf/otherdocuments/20090611_large-scale-land-acquisitions_en.pdf>, accessed 9 February 2013.33 The ICESCR has 160 signatory state parties and was adopted by the UN General Assembly in1966 and entered into force in 1976. (United Nations, Treaty Series, vol. 993, p. 3, depositarynotification C.N.781.2001.TREATIES-6 of 5 October 2001).




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

De Schutter derives 11 principles from human rights obligations for LSLAs (seeBox 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 ofthe affected local communities.

2. Shifts in land use should have the free, prior and informed consent (FPIC) of the localcommunities concerned. Evictions should be allowed to occur only in the most exceptionalcircumstances and for a public welfare reason.

3. States should adopt legislation protecting local communities and specifying in detailthe conditions according to which shifts in land use, or evictions, may take place, aswell as the procedures to be followed, and assist communities in obtaining collective landrights.

4. Investment revenues should be used for the benefit of the local population, and contractfarming 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 technolo-gies, and labor contracts should provide for a minimum living wage.

6. The modes of agricultural production shall respect the environment, and shall not accel-erate climate change, soil depletion, and the exhaustion of freshwater reserves, with apreference for low external input farming practices.

7. The obligations of the investor such as for land rents, labor creation and wages, contractfarming arrangements and local value addition should be defined in clear terms, should bemade enforceable with inclusion of pre-defined sanctions in cases of non-compliance andshould be monitored.

8. Measures should be contractually fixed to prevent an increase of food insecurity for thelocal population, including through food production and local marketing.

9. Detailed impact assessments in accordance with the specified requirements should beconducted 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 funda-

mental human and labor rights should be stipulated in legislation and enforced inpractice, 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 LSLAssimilarly affect access to drinking water. The General Comment No. 15 of theICESCR “entitles everyone to sufficient, safe, acceptable, physically accessible

34 De Schutter (2009), supra note 31, p. 1.




and affordable water for personal and domestic uses.”35 In many cases, the rightto 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 accessindirectly. Women are particularly affected by water issues. An example of analleged infringement is the land contract concluded between ADDAX Bioenergyand the government of Sierra Leone. It has been assumed that the contract mayconflict with Sierra Leone’s Water Control and Supply Act of 1963, because itaffects the water rights of the population living within the project area and in itsvicinity.36

In the context of LSLAs, states should, in addition, be guided by the need toensure the right to self-determination and the right to development of the localpopulations. The right is stipulated by both the International Covenant on Civil andPolitical Rights and the ICESCR. The right to self-determination is defined as the rightof all peoples to freely dispose of their natural wealth and resources. Both covenantsstipulate that no people may be deprived of their own means of subsistence.

Furthermore, in concluding agreements on LSLAs, states should take intoaccount the rights of current land users in the areas where the investment ismade, as well as the rights of workers employed on the farms.

Of particular relevance are the rights of indigenous peoples: The right tohave access to land for indigenous peoples has been given specific forms ofprotection under international law: Articles 13–19 of the 1989 InternationalLabour Organization (ILO) Convention (no. 169) concerning Indigenous andTribal Peoples relate to land rights as well as Article 8 para. 2b) of the UnitedNations Declaration on the Rights of Indigenous Peoples. Perhaps most relevantin this context is the principle of free, prior, and informed consent.37

The responsibilities of private enterprises with regard to human rights havebeen 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 theImplementation of the ICESCR (General Comment 15: The Right to Water, arts. 11 and 12 of theInternational Covenant) (20 January 2003), at 2.36 Sierra Leone Network on the Right to Food, Study Reveals Alarming Facts about Plantation ofAddax Bioenergy in Sierra Leone (June 2011), available at: <http://farmlandgrab.org/post/view/18809>, accessed 21 April 2013.37 Article 32 para. 2 provides that “States shall consult and cooperate in good faith with theindigenous peoples concerned through their own representative institutions in order to obtaintheir free and informed consent prior to the approval of any project affecting their lands orterritories and other resources, particularly in connection with the development, utilization orexploitation of mineral, water or other resources.”38 United Nations, Guiding Principles on Business and Human Rights: Implementing the UnitedNations “Protect, Respect and Remedy” Framework, UN Document A/HRC/17/31 (March 2011).




the Special Representative of the United Nations Secretary‐General on the Issueof Human Rights and Transnational Corporations and Other Business Enterprise,notes that the corporate responsibility to respect human rights “has acquirednear‐universal recognition by all stakeholders.”39 Thus, arguably, corporationsare also obliged to protect fundamental human rights in an investment con-text.40 These principles are increasingly being taken up in national legislationand in fora such as the Organisation for Economic Co-operation andDevelopment (OECD) and voluntary standards (see below). For the future itcan be expected that international enterprises will increasingly be heldaccountable for their activities in third countries and also for those of theirsuppliers.

Yet, it is also obvious that there are challenges linked to the implementationof human rights principles.41 However, human rights are a powerful mechanismfor raising awareness about the concerns of the poor and underprivileged tocontrast them with the vagaries of how the powerful uses law for their owninterests.

In relation to the four major challenges discussed in Section 2, internationalhuman 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 therealization of human rights;

– has – at least to some degree – an established monitoring and reportingsystem 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 LawJournal, no. 2 (2010), 201–229, at 212.41 See e.g. J. Donnelly, Universal Human Rights in Theory and Practice (2nd ed., CornellUniversity Press, 2003); E. Hafner-Burton and K. Tsutsui, Human Rights in a GlobalizingWorld: The Paradox of Empty Promises, 110 American Journal of Sociology, no. 5 (2005),1373–1411.




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 monetarybarriers.42

3.2 Voluntary international guidelines

Under this term, we subsume guidelines that are agreed by member statesunder the umbrella of the United Nations. There are two sets of voluntaryinternational guidelines that have been already developed with the UnitedNations and that have immediate relevance for LSLAs: the VoluntaryGuidelines to Support the Progressive Realization of the Right to AdequateFood in the Context of National Food Security (hereafter called VG Food) andthe Voluntary Guidelines on the Responsible Governance of Tenure of Land,Fisheries and Forests in the Context of National Food Security (hereafter calledVG Land). A third set of voluntary rules, the Responsible AgriculturalInvestments principles (RAI principles), is in preparation. All spell out in somedetail the application of a human rights-based approach for LSLAs and subse-quent productive investments.

The VG Food “represent the first attempt by governments to interpret aneconomic, social and cultural right and to recommend actions to be undertakenfor its realization.”43 The objective is to provide practical guidance for imple-menting the right to food.44 The VG Food take a broad view on food security, inline with the contemporary understanding that access to food is as importantas – or more important than – the availability of food. It deals with differentcross-cutting issues, for example, food safety, social security, education, mar-kets, 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 theGlobal 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 AdequateFood 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 bythe Right to Food Unit of the FAO: FAO, Guide on Legislating for the Right to Food (Rome,2009b).




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 ofresources consistent with their national law and with international law and protect theassets that are important for people’s livelihoods. States should respect and protect therights of individuals with respect to resources such as land, water, forests, fisheries andlivestock without any discrimination.45

Examples of land tenure regulations that are considered to already respect theseprinciples to a large extent are the Tanzania Village Land Act of 1999 (cf. AldenWily, this issue) and the Mozambique Land Law of 1997.46

The VG Land promote responsible governance of tenure with respect to allforms of tenure: public, private, communal, indigenous, customary, and infor-mal. Although only one paragraph is explicitly devoted to investments in land(para. 20), and not even specifically to LSLAs, many of the provisions concernLSLAs indirectly. Politically, it was the spate of land grabbing that prompted theVG Land process, including the establishment of regional consultations early in2009.47 The VG Land were officially endorsed by the Committee on World FoodSecurity (CFS) on May 11, 2012.48 Since then, implementation has been encour-aged by the G20, Rioþ 20, the United Nations General Assembly, and theFrancophone 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 foodsecurity and progressive realization of the right to adequate food, povertyeradication, sustainable livelihoods, social stability, housing security, ruraldevelopment, environmental protection and sustainable social and economicdevelopment.”49 The VG Land are applied to and combined with more technicalissues such as land-transfer rules (markets, investments, consolidation, restitu-tion, 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 (thisissue).48 CFS (Committee on World Food Security), available at: <http://www.fao.org/cfs/cfs-home/resaginv/en/>, accessed 6 May 2013.49 FAO, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries andForests in the Context of National Food Security (Rome, 2012a), p. 1.




most of which matter for LSLAs. In its paragraph on investments, the VG Landstipulate many of the principles already listed by de Schutter (see Box 150 andcompare Box 2).

The VG Land also recognize land taxation as a legitimate revenue-generat-ing tool for governments, and as a means to ward off mere land speculators. Inorder to prevent a “race to the bottom,” investment and land acquisition lawsshould be harmonized regionally.

According to the VG Land, LSLAs should do no harm and should safeguardagainst dispossessions of tenure rights and livelihoods and against negativehuman rights impacts, food insecurity, and environmental damage. Investorsshould recognize when people who have to relinquish their tenure rights haveless information and fewer negotiating skills. Investors should therefore ensurethat all people affected are involved and informed and that there is active, free,effective, meaningful, and informed participation of individuals and groups inassociated decision-making processes.51

However, the VG Land remain vague regarding water rights, and theymention water only in the preface without further specifications.52 Water hadbeen 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 VGLand, but this brief reference in the preface of the final version was the onlycompromise that could be reached.53 Although civil society organizations andother actors such as the European Union were strongly in favor of includingwater in the guidelines, it was ultimately excluded. It would have required awhole new negotiation process, as it is a sensitive issue, and some countries, forexample, Canada, firmly opposed the inclusion of water. Nevertheless, the VGLand provide a suitable basis also for water rights in many cases, because inmost 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 isinextricably linked with access to and management of other natural resources, such as waterand mineral resources. While recognizing the existence of different models and systems ofgovernance of these natural resources under national contexts, States may wish to take thegovernance of these associated natural resources into account in their implementation of theseGuidelines, as appropriate.” See FAO (2012a), supra note 47, p. 4.53 According to interviewsmadewith experts that were involved in the negotiation process of theVG, 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).




for instance, water rights are vested in stools (i.e. local authorities), commu-nities, and families,55 and similarly in Kenya and Tanzania, water tenure isvested in the local communities.56 In countries with a modern water rightssystem – where water rights are fully divorced from land rights, and where thestate maintains control with complex regulatory administrative systems such aslicenses, permissions, and concessions – the protection of water rights arevested in public administration mandates. In these cases, VG Land may beinsufficient to guide LSLAs with regard to their water impact. In any case,without explicitly mentioning water rights issues in the VG, the topic risksbeing neglected in treaty-making and in practice.

A new set of voluntary guidelines under the CFS on RAI principles is in themaking. They are supposed to take into account issues of large (and small)agricultural investments other than land issues relating to LSLAs. The prelimin-ary 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 dozeninternational treaties, which is expected to make them easier to negotiate andaccept. The RAI principles are expected to be finalized in late 2014.

Box 2: Preliminary principles for RAI

1. RAI enhance food security and nutrition for all.2. RAI are environmentally sustainable.3. RAI sustain or improve livelihoods and set in motion inclusive growth.4. RAI respect cultural norms, are compatible with universal human rights and are considered

legitimate by relevant stakeholders.5. RAI are supported by enabling, facilitating and regulating structures based on internation-

ally recognized good governance principles.6. RAI are supported by policies and legislation consistent with each other and address all

aspects of responsible investment as described in this document.7. RAI that affect local communities require active, free, informed and effective participation

of stakeholders.8. RAI are accompanied by mechanisms for regular review and improvement of agricultural

investment-related governance instruments and policies.9. RAI are accompanied by non-discriminatory access to justice grievance procedures and fair

and effective remedy mechanisms.10. RAI are facilitated by clear mechanisms and institutions promoting coordination, coopera-

tion and partnership among the actors involved.

55 M. Ramazzotti, Customary Water Rights and Contemporary Water Legislation, FAO LegalPapers Online 76 (Rome: FAO, December 2008); T.O. Williams et al., Water Implications ofLarge-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 andCommunity Responses to Changing Tenure Patterns in Tanzania and Kenya (May 2000), p. 5.




11. RAI are supported by multilateral international and regional organizations that complywith these principles and primarily support small-scale food producers and processors ina perspective of local and national FSN [food security network].

12. All actors involved in agricultural investment are accountable for their decisions, actionsand the impacts thereof.

Source: CFS (2013).

The biggest asset of the voluntary guidelines under the UN system, in particularunder the CFS, is their call for a transparent, participatory, and consensus-basedprocess of creating and integrating the human rights-based approach, whichtends to increase their acceptance by all stakeholders involved. For instance, anearlier attempt by four large international organizations – the World Bank, FAO,the International Fund for Agricultural Development (IFAD) and the UnitedNations Conference on Trade and Development (UNCTAD) – to establish suchprinciples (principles for RAI – PRAI) as a kind of (international) standard orcode of conduct was heavily criticized by civil society, which does not havesimilar means of interaction with these organizations as with the CFS.57 Oneoften-cited disadvantage of these guidelines is their voluntary character.However, some ways to overcome this shortcoming are voluntary monitoringand “name and shame” activities, among other means.

To summarize, the voluntary guidelines reviewed offer opportunities forimproved governance of land tenure because they– provide a framework that states can use when developing their own strate-

gies, 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 accep-table practices;

– are able to provide comprehensive and detailed guidance to politicallysensitive issues and technically complicated subjects such as the govern-ance of tenure;

– encourage processes to monitor and evaluate the impact of improved gov-ernance of tenure58;

57 World Bank, FAO, the IFAD and the UNCTAD, <http://www.responsibleagroinvestment.org/rai/>, 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 inthe Context of National Food Security” (June 2012), available at: <http://landportal.info/sites/default/files/actionaid_voluntaryguidelines_guide.pdf>, accessed 9 February 2013.58 FAO (2012a), supra note 47, p. 72.




– apply potentially to all (large) producers in the signatory countries – whetherforeign or national, whether land was acquired legally or illegally – andare independent of goods produced or traded;

– create an ideal for a development-enhancing and large agro-investmentwith 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, withregard to the need for more regulation of investment in land, it is often neglectedin the international debate that host governments’ policy space to regulateforeign direct investment (FDI) in particular is restricted by their internationalcommitments.59 In contrast to the voluntary character of the guidelines, bilateralinvestment treaties (BITs) establish far-reaching and binding rules on the legalprotection of foreign investors by the host countries. As these rules usually applyto “all kinds of investments,”60 FDI in land (and water for that matter) is thusalso covered by these treaties, and foreign investors can directly enforce theirrights guaranteed by BITs vis-à-vis the host government before transnationaltribunals.

In contrast to the world trading system, which is governed by a core set ofmultilateral rules embodied in the sectoral agreements that established theWorld Trade Organization, no such multilateral rules exist for the governance

59 Generally see e.g. J. Boon, How Developing Countries Can Adapt Current Bilateral InvestmentTreaties 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 inTrade and Investment Agreements, 29 Development Policy Review, no. 4 (2011); UNCTAD, WorldInvestment 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. Dolzerand C. Schreuer, Principles of International Investment Law (Oxford: Oxford University Press,2008), pp. 368–375.




of FDI.61 Instead, FDI flows are protected by a broad set of 2,857 BITs.62 BITshave a common origin in the Draft Convention on Investments Abroad, whichwas proposed in 1959 by Hartley Shawcross, an English lawyer and a director ofShell Petroleum, and the Chairman of Deutsche Bank, Herman Abs. The Abs-Shawcross Convention was a reaction to the widespread expropriation, nationa-lization, and bad treatment of foreign investors by developing countries in thepost-colonial era.63 Accordingly, the Abs-Shawcross Convention and capital-exporting 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 ofthe Abs-Shawcross Convention for more than five decades. It is only recentlythat the public as well as civil society actors have been questioning the purposeand function of BITs as tools that are primarily designed to provide foreigninvestors with an additional layer of legal protection.

In contrast to the world trade system, BITs were originally not pursued asinstruments to enhance market access for foreign investors (i.e. to provideforeign investors with protection in the pre-establishment phase). This novelfeature was introduced first in BITs of the United States in the 1980s and isusually applied in Preferential Trade and Investment Agreements (PTIAs), whichare gradually replacing BITs as the main instruments to govern FDI flows.64 Mostof the existing BITs thus open up the possibility for host countries to regulateFDI before it enters the country. Thereby, host countries are able to decide whichindustries and kinds of investments they would like to admit and which require-ments these investors have to fulfill (e.g. joint venture and technology-transferrequirements). Notwithstanding this room for maneuver in the pre-establishmentphase, BITs constrain host governments’ policy space in the post-establishmentphase. BITs oblige the host country to treat foreign investors in a non-discrimi-natory way (national treatment and most-favored-nation treatment), expropriateonly against just and effective compensation, and grant fair and equitabletreatment. 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?, GermanDevelopment Institute/Deutsches Institut für Entwicklungspolitik (DIE) Briefing Paper 9/2013(Bonn, 2013).62 UNCTAD, World Investment Report 2013. Global Value Chains: Investment and Trade forDevelopment (New York/Geneva: United Nations, 2013), p. 101.63 See e.g. A. Newcombe and L. Paradell, Law and Practice of Investment Treaties: Standards ofTreatment (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).




of BITs, protect individual investment contracts between foreign investors andhost countries. Due to the umbrella clause, a breach of the investment contractby the host country is equivalent to a breach of the BIT. The distinctive char-acteristic of the international investment regime is that foreign investors, asprivate legal persons, are enabled to bring claims against alleged violations bythe host countries to transnational tribunals. The investor-state dispute-settle-ment (ISDS) mechanism is a powerful tool for the investor to enforce thesubstantive BIT provisions. Except for more recent treaties, BITs do not includebinding language on the right of the host country to create regulations, orparticular references to sustainable development.

Developing countries have signed BITs mainly with the goal of attractingFDI. The empirical literature on the effects of BITs on FDI flows, however, isinconclusive. Most econometric studies argue that BITs do have a positive effecton FDI.65 One of the major weaknesses of these studies is that they did notaccount for the variety of investment rules found in different agreements. Moredetailed studies, in contrast, find that stricter investor-state dispute-settlementprovisions, which make substantive provisions enforceable, do not significantlyincrease FDI flows.66 Other studies that distinguish international investmentagreements according to the inclusion of market access provisions find thatthese provisions are only effective when they are found in PTIAs.67

Furthermore, surveys of foreign investors conclude that they rarely take theseagreements into account68 when making investment decisions, providing furtherevidence that these treaties are rather ineffective tools for helping developingcountries attract FDI.

In view of this ineffectiveness, the substantive provisions of BITs, enforce-able through the ISDS mechanism, have a potentially severely constraining

65 For an overview see UNCTAD, The Role of International Investment Agreements in AttractingForeign Direct Investment to Developing Countries (New York/Geneva: United Nations, 2009), andK. Sauvant and L. Sachs (eds.), The Effect of Treaties on Foreign Direct Investment: BilateralInvestment Treaties, Double Taxation Treaties, and Investment Flows (New York: OxfordUniversity 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!, 112Economic Letters (2011).67 See A. Berger et al., Do Trade and Investment Agreements Lead to More FDI? Accounting forKey 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 Hintsfrom Alternative Sources of Evidence, 51 Virginia Journal of International Law, no. 2 (2010).




impact on national law.69 Dolzer argues that three provisions in particular havea deep impact on national law-making, namely the fair and equitable treatment,indirect expropriation, and umbrella clauses.70 These provisions create far-reaching rights for foreign investors because they extend to a broad range ofpublic policies (including environment and health policies) and are draftedusing vague language. In particular, this latter aspect provides transnationalarbitration tribunals with a lot of freedom to interpret these rules in an investor-friendly way, thus restricting host countries’ policy space to regulate foreigninvestment.

Against this background, a number of capital-exporting countries havereformed their BIT and PTIA model texts and are negotiating treaties that areaimed at enhancing host countries’ policy space. This trend started as a result ofthe first ISDS proceedings against the United States, Canada, and Mexico on thebasis of the North American Free Trade Agreement (NAFTA). The NAFTA coun-tries have subsequently adapted their treaty-making practice and are now nego-tiating BITs and PTIAs that increase the policy space of the host country toregulate FDI for public purposes. The EU will most likely follow this model of theNAFTA countries. Due to the Lisbon Treaty,71 the competency for FDI shiftedfrom the member states to the EU level, and future EU investment treaties will benegotiated by the European Commission and ratified by the Council and theEuropean Parliament. This new political economy of investment treaty-makingin the EU – in addition to the normative obligation to comply with Art. 21 of theTreaty 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 IndonesianInternational Investment Agreements and National Investment Law, German DevelopmentInstitute/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 amendmentof the constitutional framework of the EU. In the area of international economic policy makingthe most significant change was the expansion of the scope of the EU’s common commercialpolicy by the competency for FDI. As a result, the EU has now not only the exclusivecompetency 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 willthe New EU Competence on FDI Affect the Emerging Global Regime? 15 Journal of InternationalEconomic Law, no. 1 (2012).72 Art. 21 of the Treaty of the Union requires that the external actions of the EU should interalia encourage sustainable development in developing countries with the aim of reducingpoverty.




from the traditional BIT approach of the member states to include more devel-opment-friendly rules that enhance the policy space of host countries.73 Thenoteworthy feature of future EU investment agreements is that they will replacethe old member state BITs.74

Despite these recent changes in investment treaty-making and the wide-spread criticism of civil society actors against the one-sidedness of BITs, there isnot much that can be done to refocus the international investment regimetoward the principles that are at the core of the VG Land, at least in the short-to medium term. As long as old, one-sided BITs have not been replaced by newand more balanced BITs and PTIAs, foreign investors are able to refer to morefavorable treaties through most-favored-nation treatment provisions and com-plex corporate structuring arrangements importing the “stronger” rules fromolder treaties. Hence, policymakers in host and home countries who aim toimplement some of the principles of the VG Land have to be aware of thissystemic inertia of the international investment regime, which will hampereffective regulations of FDI in land for quite some time. In partial conclusion,investment treaties do not have a positive impact on making LSLAs moredevelopment-friendly; in contrast, they severely hamper the ability of hostcountries 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 InvestmentAgreements Offer for Developing Countries?, German Development Institute/Deutsches Institutfür Entwicklungspolitik (DIE), Briefing Paper 12/2012 (Bonn, 2012).74 See Art. 3 of the Regulation No. 1219/2012 OF THE EUROPEAN PARLIAMENT AND OF THECOUNCIL of 12 December 2012 on the establishing transitional arrangements for bilateralinvestment agreements between Member States and third countries.




3.4 Global water governance regimes and bi-/multilateralriver treaties

If the acquired large-scale land tracts are irrigated on a large scale, their waterconsumption can have transboundary effects downstream if rivers and theirtributaries are shared, such as with the Nile and Niger rivers. The global watergovernance architecture related to transboundary freshwater bodies75 shares thecommon feature that states are the principal actors, not only to negotiate butalso to implement, monitor, and enforce rules. In this respect, it is the respectiveriparian state to a bi-/multilateral river agreement that has to assess whetherwater demand from new large-scale investments in irrigated agriculture can besatisfied without violating the terms concluded in the river treaty; and finally toguarantee that there is no significant negative impact downstream (UNWatercourse 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 assumethat upstream countries (e.g. Ethiopia on the Nile River) could use LSLAs as apolitical instrument in multilateral water negotiations, which ultimately couldchange the power balance between upstream and downstream countries.Contracts with private land investors could weaken existing bi-/multilateralriver-related agreements, such as the Egypt–Sudan Treaty of 1959, to whichEthiopia is not party. On the contrary, Ethiopia was excluded from the treaty,and Egypt and Sudan were not willing to renegotiate the 1959 Egypt–SudanTreaty.77

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




3.5 Private standards and codes

Private standards and codes here are meant to include those which the privatesector – often in conjunction with other stakeholders – has elaborated as self-binding rules, and which the relevant actors have to comply with if theyvoluntarily accept them in exchange for certain advantages such as a label,access to a specific market, a conditional credit, or reputation. As alreadymentioned, this comprises a large cluster of mechanisms; some voluntaryschemes span the bridge to more binding measures such as human rights andgovernment regulation.

These standards and codes have emerged as a megatrend in recent years,particularly in developed countries,78 largely to assure consumers of certainqualities of goods and services as well as of the production process. Thesecharacteristics often relate to food safety concerns, but increasingly, social andenvironmental concerns have also been requested and taken up in the context ofprivate standards and certification systems.

In contrast to government regulations, private standards are not uniform toall goods, but open to competition among the standards and the (groups of)enterprises adhering to them. Thereby, they tend to generate fragmented mar-kets, which industries and consumers can use to find their optimal portfolio ofproduction and consumption patterns. They also allow price differentiationaccording to the strictness of standards, the costs of adherence and certification,the reputation attached, and also the visibility to the consumer (which isdifferent for end products and industrial input). Different types of private stan-dards can be distinguished, for instance, those of individual companies andgroups; those involving stakeholders in the elaboration of the codes to a certaindegree; those taking into consideration some or all steps, from production toconsumption; those applying to one or many commodities and products; thosethat are valid at the national, regional, and/or global levels; those accountingfor 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 createinefficiencies, for instance when market participants need to comply with sev-eral standards, resulting in duplication of compliance costs, or when there is aneed to comply with different standards for different target markets or buyers.

According to Cuffaro and Hallam, the chances of standards being effectivelyimplemented 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).




effectiveness of civil society pressure; vulnerability of key actors to such pres-sure.”79 Strong participation of local stakeholders is also conducive to theimplementation of standards as well as the public transparency of methodsand findings and simultaneous support processes within factories and globalsupply chains.80

A first small wave of private standards started in the 1970s, led by interna-tional organizations such as the ILO and the OECD. In the 1990s, a second, muchlarger wave emerged, this time led by governments, NGOs, and companies,particularly multinationals. A third wave of international standards stipulatesa set of social and ecological requirements for large investments81: the GlobalCompact’s Ten Principles for private companies (UN)82; the Santiago Principlesfor Sovereign Wealth Funds; the World Bank Group’s Safeguards; and theEquator Principles for project financing of private banks.

In the biofuels sector in particular, an additional set of standards hasemerged that bridges to some extent the gap between voluntary standards andcompulsory regulation. They restrict the recognition of agro-fuels to nationaltargets (quotas) and instruments (subsidies, levy exemption, support, etc.), toonly such products that satisfy certain levels of greenhouse gas reductions(sometimes including indirect land use changes), plus a number of other envir-onmental conditions such as biodiversity protection. In several of the certifica-tion systems recognized, social standards are also enshrined. Land-transactionissues are hardly ever included, but many standards require compliance withlabor and other social standards.

Certification standards are very heterogeneous, and – in light of the pro-blems 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: <http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1750047_code904191.pdf?abstractid=1744204&mirid=1>, accessed 12May 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., GreenInfrastructure Finance: Leading Initiatives and Research (Washington, DC: World Bank, 2012).82 Presently, also a Global Compact on Sustainable Agriculture Business Principles is devel-oped in the UN framework. See UN Global Compact SABPs (Sustainable Agriculture BusinessPrinciples), available at: <http://www.fairlabor.org/blog/entry/developing-sustainable-agricul-ture-business-principles-un-global-compact>, accessed 6 May 2013.83 IEA, Recommendations for Improvement of Sustainability Certified Markets, Strategic Inter-Task Study: Monitoring Sustainability Certification of Bioenergy (February 2013), available at:<http://www.bioenergytrade.org/downloads/iea-sust-cert-task-4-final2013.pdf>, accessed 12May 2013.




some authors and organizations claim that these standards are the welcomeforerunners of (an attempt to develop) global standards for the entire agricul-tural production sector.84 This would indeed be a revolutionary step, but it is farfrom realization, given the resistance of many developing countries and indus-tries to accept common standards, as illustrated above.

Land rights have not been an important feature of private standards; theonly exception being land issues that affect workers and associated small-holders. However, the wave of LSLAs has also raised awareness regarding thistopic.

Transparency is an important aspect of many private standards. It is also theguiding principle of the Extractive Industry Transparency Initiative, which iscurrently also progressing toward enhancing transparency in alternatives to agiven 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 theprivate sector – supports transparency in public contracting, which encom-passes contracts funded by combinations of public, private, and donorsources.85 The Global Reporting Initiative – now an independent organizationthat was initiated in 1997 by international environmental organizations – hasdeveloped 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 theoverall achievements of social and environmental goals are complex and dis-puted. The implementation of standards may have important side effects, whichcan be detrimental to the pursued goals, in particular for developing countriesand smallholders.87 The latter may not be able to comply, or they have to facehigh costs for compliance and certification, costs that – particularly if calculatedper unit of product – are often higher than those of developed countries andformal actors. Thus, as discussed for government regulation, there is strongresistance to adopt such standards in developing countries, and it is at leastrecommended to develop them collectively.

84 I.e. S. Schlegel, T. Kaphengst and S. Cavallieri, Options to Develop a Global Standard-SettingScheme for Products Derived from Natural Resources (NRS) (Frankfurt/Berlin: WWF Germanyand Ecologic, 2008).85 Open Contracting, available at: <http://www.open-contracting.org/>, accessed 12 May 2013.86 Global Reporting Initiative, available at: <https://www.globalreporting.org/Pages/default.aspx>, accessed 12 May 2013.87 S. Henson and J. Humphrey, Understanding the Complexities of Private Standards in GlobalAgri-food Chains As They Impact Developing Countries, 46 The Journal of Development Studies,no. 9 (2010), 1628–1646.




In relation to the complex challenges of LSLAs set out above, voluntaryprivate 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 andadjusted to the needs and possibilities of the actors;

– they sometimes allow price premiums, thus creating more incentives tocomply;

– or, at the very least, they permit access to high-value markets that demandthese standards;

– they can be relatively easily linked to specific trainings and help to mobilizefunding 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 high-

end markets) and not to the producers, thus neglecting the latter’s specificneeds and possibilities.

4 Conclusions

In this article, we assess key international frameworks with regard to theirsuitability to regulate LSLAs in order to enhance their contribution to economicand social development in host countries. Table 1 summarizes the findings ofthis assessment. The most important conclusion from our assessment is that nosingle framework provides an overarching, comprehensive tool to regulate allaspects of LSLAs. Moreover, some frameworks – in particular, sweeping provi-sions for the protection of foreign investors in international investment agree-ments – may constitute an impediment for host countries to enact legislationthat may be required to fulfill commitments made in the context of otherinternational frameworks. For example, the requirement of international invest-ment agreements to ensure fair and equitable treatment as well as refrain fromany discrimination of different kinds of investors may reduce the host country’sability to support local investors. Of course, limiting policy space is not negativeper se, to the contrary – international frameworks are primarily explicitlyintended to reduce policy space to improve predictability and protect from




Table1:

Stren

gths

andlim

itations

ofregu

lating

LSLA

sof

theinternationa

lfram

eworks

review

ed

Hum

anrigh

tstrea

ties

Voluntary

guidelines

Internationa

linvestmen

t

trea

ties

Bi-an

dmultilateralriver

trea

ties

Privatestan

dardsan

dcode

s

Stren

gths

Broad

coverage

Binding

principles

basedon

universally

accepted

values

Well-establishe

dmon

itoringan

d

repo

rtingmecha

nism

s

Insu

pportof

wea

kstak

eholde

rs

Gen

erally

broa

d

cons

ensu

s

Hum

anrigh

tsba

sed

Spe

cificon

land

issu

es

Gen

erally

aim

at

taking

into

accoun

t

thelocalcontext

Possibility

toregu

late

the

entryof

FDIs

New

trea

ties

ensu

rethat

investor

protection

shou

ld

notconflictwithso

cial

policies

Binding

rulesforstates,

notinvestors;

enforcem

ent

throug

hstate

Con

flicting

interest

betw

eenup

-an

d

downs

trea

mstates:

interest

ofdo

wns

trea

m

states

torestrict

water-

intens

iveinvestmen

ts

Flexible

andsp

ecific

forums

Can

providemon

etary

incentives

forcomplianc

e

Cap

acityde

velopm

entea

sy

tolin

kto

stan

dards

Limitations

Sho

rtcomings

insu

bstantive

rulesan

dlega

lremed

ies,

often

resu

ltingin

theirineffectiven

ess

tocorrectna

tion

alrealities

Resp

onsibilitiesof

privateactors

only

emerging

Highlydisp

uted

enforcem

entat

internationa

llevel

Water

righ

tsissu

es

only

partially

covered

Non

-binding

Nomon

itoringan

d

repo

rting

mecha

nism

Redu

cepo

licysp

aceof

host

coun

tries–oftenin

favorof

foreigninvestors

Failto

cons

ider

social

and

environm

entaldimen

sion

s

Often

nomon

itoringan

d

sanc

tion

ingforinvestor

cond

uct

ISDSarbitrationen

ables

foreigninvestorsto

bypa

ss

domesticlega

lsystem

Doe

sno

tap

plyto

nation

al

investors

Relie

son

effectivena

tion

al

water

reso

urcesplan

ning

,

man

agem

ent,an

d

governan

ce

Relative

power

ofna

tion

al

governmen

tslim

its

influe

nceover

tran

sbou

ndarywater

implications

ofLS

LAs

App

lyon

lyto

willingactors

Difficultto

complyforthe

inform

alsector

(smallholde

rs)

Often

neglectlocal

stak

eholde

rne

eds

(smallholde

rsin

particular,

butalso

othe

rwea

k,

affected

grou

ps)




arbitrary decisions of national policy makers. Some frameworks have limitedscope to regulate LSLAs because only some investments are covered – by foreigninvestors, for example, or only those adhering to voluntary standards. As tovoluntary multilateral guidelines, their voluntary nature dilutes the impact,since they cannot be invoked in any legal proceedings. But international bindingframeworks, such as those based on human rights, also have serious limitationsregarding their implementation, even with increased monitoring, compliance,and dispute-settlement efforts. In addition, some frameworks can have negativeside effects, for instance voluntary standards tend to exclude small farmers.

Targeting water issues in LSLAs obviously calls for specific policy interven-tions that are beyond land regulation and that relate to the following: theleasing and purchasing prices of land need to reflect access to water resources;prices must be higher if compared with land without water endowments; areliable database is needed as well as water resource management plans onwhich to decide whether water use in agriculture should/can be extended; dueconsideration must be taken of actual versus new water users; the need for pre-assessing potential environmental effects which might derive from farm opera-tions by means of Environmental and Social Impact Assessment studies. Aboveall, actual water use rights holders and agencies concerned with water planningmust have a say in land-deal negotiations for two reasons: to assess whetherwater resources are physically available to satisfy investors’ business plans andto secure that water use rights, which are untied to land, are openly negotiatedand eventually compensated. However, if LSLAs have transboundary implica-tions, the means for regulating them are the exclusive responsibility of thegovernment that has concluded a deal.

Lack of implementing international frameworks, however, also applies tothose host countries that have been labeled “development-friendly” and “pro-gressive.”88 In fact, national legislation, including old colonial and post-colonialrules, was – and still is – difficult to apply to rural areas. The absence of statelegitimacy; transparent policy processes; accountability of the state and its elitestoward constituencies; as well as the lack of prosecuting the violation of rules –and the lack of benefits for adhering to them – all contribute to weakeningformal rural governance systems of poor states.

On the other hand, although “traditional” local (land and other) governancesystems are still more influential in rural areas than modern state systems, theirlegitimacy basis is weak, fading, or challenged by the abuse of customarypowers. 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.




in particular where local regimes mutually conflict or overlap and where newactors and influences increasingly defy traditional norms and powers. There arenumerous cases in which local traditional elites have welcomed and concludedproblematic 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 LSLAsdo not travel easily, all the more because there is not one but a set of severaldifferent partly overlapping and contradicting frameworks which – whenapplied individually – cover issues only partially. The salient questions arewhether, how, and which norms “actually reach a domestic area”, “get on thedomestic agenda”91 (Checkel 1997) and become part of domestic normativeframeworks and practices. Norm localization, a concept developed by Acharya(2004),92 is promising in this context and offers avenue for future research. Itdefines local actors as the key in political processes translating internationalnorms to take into consideration local conditions. At the same time, some of theframeworks explicitly try to link local conflicts directly to international norms,trying to achieve localization through strengthening direct international – locallinkages. In this respect, it is of great interest to study ongoing LSLA activities ina set of host countries both with “weak” and with “good” governance structures,and to investigate how international frameworks trickle down to local policyarenas, how they are used by stakeholders, and how they are finally shapingconflicts at the local level and affecting their results. In particular, their potentialfor empowering poor stakeholders should be of interest for research anddevelopment.

89 Compare e.g. S. Väth, Gaining Neighbours or Big Losers – What Happened When Large-scaleLand-based Investment in the Ghanaian Oil Palm Sector Met the Local Population on the Ground?Land Deal Politics Initiative Working Paper 24 (2013), <http://www.cornell-landproject.org/download/landgrab2012papers/Vath.pdf>, accessed 31 October 2013; S. Berry, Questions ofOwnership: 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 GovernanceSystems: 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-ConstructivistDivide, 3 European Journal of International Relations, no. 4 (1997), 473–495.92 A. Acharya, How Ideas Spread: Whose Norms Matter? Norm Localisation and InstitutionalChange in Asian Regionalism, 58 International Organisation (2004), 239–275.




Literature

Acharya, A., How Ideas Spread: Whose Norms Matter? Norm Localisation and InstitutionalChange in Asian Regionalism, 58 International Organisation (2004).

ActionAid, A Brief Introduction to the “Voluntary Guidelines on the Responsible Governance ofTenure of Land, Fisheries and Forests in the Context of National Food Security” (June 2012),available at: <http://landportal.info/sites/default/files/actionaid_voluntaryguidelines_-guide.pdf>, accessed 9 February 2013.

Alden Wily, L., Governance and Land Relations: A Review of Decentralisation of LandAdministration and Management in Africa (London: IIED, 2003).

Alden Wily, L., Looking Back to See Forward: The Legal Niceties of Land Theft in Land Rushes, 39Journal of Peasant Studies, no. 3–4 (2012).

Alden Wily, L., The Law and Land Grabbing: Friend or Foe, presentation at the 2013 Law andDevelopment Conference “Legal and Development Implications of International LandAcquisitions” (Kyoto, Japan, 31 May 2013).

Anseeuw, W., M. Boche, T. Breu, M. Giger, J. Lay, P. Messerli and K. Nolte, Transnational LandDeals for Agriculture in the Global South, analytical report based on the Land MatrixDatabase (Bern/Montpellier/Hamburg: CDE/CIRAD/GIGA, 2012).

Askew, K., F. Maganga and R. Odgaard, Of Land and Legitimacy: A Tale of Two Lawsuits, 83Africa: 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 DevelopmentInstitute/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 toMore FDI? Accounting for Key Provisions Inside the Black Box, 10 International Economicsand Economic Policy, no. 2 (2013).

Berger, A., M. Busse, P. Nunnenkamp and M. RoyBerger, More Stringent BITs, Less AmbiguousEffects on FDI? Not a Bit! 112 Economic Letters (2011).

Berger, A. and J. Harten, What Opportunities Do the New EU International InvestmentAgreements Offer for Developing Countries?, German Development Institute/DeutschesInstitut für Entwicklungspolitik (DIE), Briefing Paper 12/2012 (Bonn, 2012).

Berry, S., Questions of Ownership: Proprietorship and Control in a Changing Rural Terrain – ACase Study from Ghana, 83 Africa, no. 1 (2013).

Boon, J., How Developing Countries Can Adapt Current Bilateral Investment Treaties to ProvideBenefits to Their Domestic Economies, 187 Global Business Law Review, no. 1 (2011).

Bromley, D.W., Formalising Property Relations in the Developing World: The Wrong Prescriptionfor the Wrong Malady, 26 Land Use Policy, no. 1 (2009).

Brüntrup, M., Detrimental Land Grabbing or Growth Poles? Determinants and PotentialDevelopment 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: <http://www.fao.org/cfs/cfs-home/resaginv/en/>, accessed 6 May 2013.




Cernic, J.L., Corporate Human Rights Obligations under Stabilization Clauses, 11 German LawJournal, no. 2 (2010).

Chaisse, J., Promises and Pitfalls of the European Union Policy on Foreign Investment. How Willthe New EU Competence on FDI Affect the Emerging Global Regime? 15 Journal ofInternational Economic Law, no. 1 (2012).

Checkel, J.T., International Norms and Domestic Politics: Bridging the Rationalist-ConstructivistDivide, 3 European Journal of International Relations, no. 4 (1997).

Chu, J, Gender and “Land Grabbing” in Sub-Saharan Africa: Women’s Land Rights andCustomary Land Tenure, 54 Development, no. 1 (2011).

Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in theImplementation of the ICESCR (General Comment 15: The Right to Water, arts. 11 and 12 ofthe 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: <http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1750047_code904191.pdf?abstractid=1744204&mirid=1>,accessed 12 May 2013.

De Schutter, O., Large-scale Land Acquisitions and Leases: A Set of Core Principles andMeasures to Address the Human Rights Challenge (June 2009), available at: <http://www.srfood.org/images/stories/pdf/otherdocuments/20090611_large-scale-land-acquisition-s_en.pdf>, accessed 9 February 2013.

Deininger, K. and D. Byerlee, Rising Global Interest in Farmland: Can It Yield Sustainable andEquitable Benefits? (Washington, DC: World Bank, 2010).

Deininger, K. and G. Feder, Land Registration, Governance, and Development: Evidence andImplications for Policy, 24 The World Bank Research Observer, no. 2 (2009).

Dolzer, R., The Impact of International Investment Treaties on Domestic Administrative Law, 37International Law and Politics, no. 4 (2006).

Dolzer, R. and C. Schreuer, Principles of International Investment Law (Oxford: Oxford UniversityPress, 2008).

Donnelly, J., Universal Human Rights in Theory and Practice (2nd ed., Ithaca, NY: CornellUniversity Press, 2003).

Dwyer, M.B., Building the Politics Machine: Tools for ‘Resolving’ the Global Land Grab, 44Development and Change, no. 2 (2013).

Edelman, M., Messy Hectares: Questions about the Epistemology of Land Grabbing Data, 40Journal of Peasant Studies, no. 3 (2013).

FAO, Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Foodin the Context of National Food Security (Rome, 2005).

FAO, From Land Grab to Win-Win. Seizing the Opportunities of International Investments inAgriculture (Rome, 2009a).




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 andInvestment Agreements, 29 Development Policy Review, no. 4 (2011).

German, L., G. Schoneveld and E. Mwangi, Contemporary Processes of Large-scale LandAcquisition by Investors: Case Studies from sub-Saharan Africa, Occasional Paper 68(Bogor/Indonesia: CIFOR, 2011).

Global Reporting Initiative, available at: <https://www.globalreporting.org/Pages/default.aspx>, accessed 12 May 2013.

GRAIN, Seized: The 2008 Landgrab For Food And Financial Security (October 2008), available at:<http://www.grain.org/article/entries/93-seized-the-2008-landgrab-for-food-and-finan-cial-security>, accessed 6 May 2013.

GRAIN, Squeezing Africa Dry: Behind Every Land Grab Is a Water Grab (Barcelona, June 2012),available at: <http://www.grain.org/article/entries/4516-squeezing-africa-dry-behind-every-land-grab-is-a-water-grab>, accessed 21 August 2012.

GRAIN, available at: <http://farmlandgrab.org/>, 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 andDevelopment Implications of International Land Acquisitions” (Kyoto, Japan, 31 May 2013).

Henson, S. and J. Humphrey, Understanding the Complexities of Private Standards in GlobalAgri-food Chains As They Impact Developing Countries, 46 The Journal of DevelopmentStudies, no. 9 (2010).

Herrmann, R., U. Grote and M. Brüntrup, Household Welfare Outcomes of Large-scaleAgricultural Investments: Insights from Sugarcane Outgrower Schemes and EstateEmployment in Malawi, paper presented at the Annual World Bank Conference on Landand Poverty (Washington, DC, 8–11 April 2013), available at: <http://www.conftool.com/landandpoverty 2013/index.php/Herrmann-368_paper.pdf?page=downloadPaper&filename=Herrmann-368_paper.pdf&form_id=368&form_ver-sion=final>, accessed 6 May 2013.

Hertzog, T. et al., Ostrich-Like Strategies in Sahelian Sands? Land and Water Grabbing in theOffice du Niger, Mali, 5 Water Alternatives, no. 2 (2012).

Hilhorst, T., J. Nelen and N. Traoré, Agrarian Change below the Radar Screen: Rising FarmlandAcquisitions by Domestic Investors in West Africa. Results from a Survey in Benin, BurkinaFaso and Niger, unpublished paper by the Royal Tropical Institute and SNV (April 2011),available at: <http://m.snvworld.org/sites/www.snvworld.org/files/publications/agrar-ian_change_under_radar_screen_kit_snv.pdf>, accessed 6 May 2013.




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:<http://www.bioenergytrade.org/downloads/iea-sust-cert-task-4-final2013.pdf>, accessed12 May 2013.

Jägerskog, A., A. Cascão, M. Hårsmar and K. Kim, Land Acquisitions: How Will They ImpactTransboundary Waters?, Report no. 30 (Stockholm: SIWI, 2012).

Kennedy, E.T., The Effects of Sugarcane Production on Food Security, Health, and Nutrition inKenya: A Longitudinal Analysis (Washington, DC: IFPRI, 1989).

Knörich, J. and A. Berger, Friends or Foes? Interactions between Indonesia’s InternationalInvestment Agreements and National Investment Law, German Development Institute/Deutsches Institut für Entwicklungspolitik (DIE), Study (Bonn, 2014, Study No. 82).

Land Matrix, available at: <http://landportal.info/landmatrix>, 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: Actorsand Institutions in the Case of Zambia, GIGA Working Papers no. 221 (Hamburg: GIGAGerman Institute of Global and Area Studies, 2013).

Open Contracting, available at: <http://www.open-contracting.org>, 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: <http://www.newscientist.com/article/mg21729066.400-splash-and-grab-theglobal-scramble-for-water.html>, 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: ACritical Assessment, 27 Development and Change, no. 1 (2008).

RAI, available at: <http://www.responsibleagroinvestment.org/rai/>, accessed 12 May 2013.




Ramazzotti, M., Customary Water Rights and Contemporary Water Legislation, FAO Legal PapersOnline 76 (Rome: FAO, 2008).

Richards, M., Social and Environmental Impacts of Agricultural Large-scale Land Acquisitions inAfrica – 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: BilateralInvestment Treaties, Double Taxation Treaties, and Investment Flows (New York: OxfordUniversity Press, 2009).

Schaffnit-Chatterjee, C., Foreign Investment in Farmland. No Low-Hanging Fruit, Deutsche Bankresearch (Frankfurt a. M., November 2012), available at: <http://www.dbresearch.com/PROD/DBR_INTERNET_EN-PROD/PROD0000000000296807/Foreign±investment±in±farmlandpercent3A±No±low-hanging±fruit.PDF>, accessed 9 February 2013.

Schlegel, S., T. Kaphengst and S. Cavallieri, Options to Develop a Global Standard-SettingScheme for Products Derived from Natural Resources (NRS) (Frankfurt/Berlin: WWFGermany 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, paperprepared 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 ofAddax Bioenergy in Sierra Leone (June 2011), available at: <http://farmlandgrab.org/post/view/18809>, accessed 21 April 2013.

Smaller, C. and H. Mann, A Thirst for Distant Lands: Foreign Investment in Agricultural Land andWater, Foreign Investment for Sustainable Development Program, International Institutefor Sustainable Development (IISD) (Winnipeg, Canada 2009).

United Nations, Treaty Series, vol. 993, depositary notification C.N.781.2001.TREATIES-6 of 5October 2001.

United Nations, Guiding Principles on Business and Human Rights: Implementing the UnitedNations “Protect, Respect and Remedy” Framework, UN Document A/HRC/17/31 (March2011).

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, Respectand Remedy: A Framework for Business and Human Rights, U.N. Doc. A/HRC/11/13/ (22April 2009).

UN Global Compact SABPs (Sustainable Agriculture Business Principles), available at: <http://www.fairlabor.org/blog/entry/developing-sustainable-agriculture-business-principles-un-global-compact>, accessed 6 May 2013.

UNCTAD, The Role of International Investment Agreements in Attracting Foreign DirectInvestment to Developing Countries (New York/Geneva: United Nations, 2009).

UNCTAD, World Investment Report 2012. Towards a New Generation of Investment Policies (NewYork/Geneva: United Nations, 2012).

UNCTAD, World Investment Report 2013. Global Value Chains: Investment and Trade forDevelopment (New York/Geneva: United Nations, 2013).




Väth, S., Gaining Neighbours or Disruptive Factors – What Happened When Large-scale Land-based Investment in the Ghanaian Oil Palm Sector Met the Local Population on theGround?, paper presented at the International Conference on Global Land Grabbing II(Cornell University, Ithaca, NY, 17–19 October 2012), available at: <http://www.cornell-landproject.org/download/landgrab2012papers/Vath.pdf>, accessed 31 October 2013.

Vermeulen, S. and L. Cotula, Over the Heads of Local People: Consultation, Consent, andRecompense in Large-Scale Land Deals for Biofuels Projects in Africa, 37 The Journal ofPeasant Studies, no. 4 (2010).

Von Braun, J. and R.S. Meinzen-Dick, “Land Grabbing” by Foreign Investors in DevelopingCountries: Risks and Opportunities (Washington, DC: IFPRI, 2009).

Von Lossow, T., Machtverschiebung am Nil. Äthiopien und Ägypten begegnen sich imWasserkonflikt auf Augenhöhe (SWP-Aktuell 11, Februar, 2013).

Williams, T.O., et al., Water Implications of Large-scale Land Acquisitions in Ghana, 5 WaterAlternatives, no. 2 (2012).

Wolford, W., et al., Governing Global Land Deals: The Role of the State in the Rush for Land, 44Development 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 fromAlternative 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 necessarilythose of their organizations.




Special Issue in Law and Development

Documents

Transcript of Special Issue in Law and Development