Volume 7, Issue 2 - Special Issue (2014): Law and Development Perspective of International Land Acquisitions

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

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

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

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

This short article offers two observations about international adjudication of land disputes. First, the article shows that such adjudication is intended to further development, but that this goal is served better, if counter-intuitively, by rejecting the so-called Salini contribution-to-development test in favor of case-by-case adjudication on the merits. Second, the article locates such adjudication within the modern trend toward transnationalism, a trend that unites international investment law with human rights law. In light of these observations, the article concludes that international adjudication of land disputes may contribute to such human values as development, human rights, and the rule of law.

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

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

Until now, most policy recommendations put forward to deal with the possible negative impacts of large-scale land acquisitions are either directed towards the legal recognition and formalization of land rights in order to secure the rights of historical land holders or the design and implementation of “voluntary” guidelines and codes of conduct that promote positive development outcomes of large-scale land investments. This paper argues that these types of recommendations tend to depoliticize the debate around access to land and natural resources, whether at local, national and international levels. This paper looks to bring this political dimension back by proposing an analytical framework in line with the legal pluralist tradition. From a legal pluralistic analysis of the process of land deals in Ethiopia, this paper finds out that socio-cultural identity and power structures, rather than market and regulatory failure alone, play a fundamental role in redirecting negotiations and determining losers and winners from such deals. With the above finding, this paper finally suggests that blueprint international standards or investment regulatory measures cannot be used as a panacea and that solutions need to be more profound than such conventional approach.

This paper explores the use of international governance frameworks as being one of the ways to regulate large-scale land acquisitions (LSLAs). LSLAs are currently flourishing in both developed and developing countries, in particular in the sub-Saharan Africa region. Although they can potentially have many positive impacts in rural areas, many LSLAs have been shown to mainly produce negative impacts in poor countries with weak national policy and institutional frameworks and poorly defined rights for rural people. To successfully regulate the occurrence of LSLAs and their impacts, it needs to be understood that LSLAs are more complex than they are usually portrayed as being. Some of the complexities pertain to water issues; provenience of investors; legality and legitimacy of acquisitions; as well as the diversity of actors and the people affected. Against this background, five international frameworks are looked at: human rights, voluntary international guidelines, international global water governance regimes and bi-/multilateral river treaties, and voluntary private standards and codes. The paper concludes that the frameworks reviewed provide valuable guidance regarding LSLAs, but no single approach can help in dealing with the multitude of actors, situations, and impacts of LSLAs. Even if they are considered collectively, they can tackle many but not all challenges. Yet, their implementation could substantially improve the process and the impact of LSLAs, including their refusal. A key question is how these frameworks are deployed at the local level. Some rely on translation into national laws and on their implementation, others try to establish a direct linkage between the international and the local level. It is of great interest to study how international frameworks trickle down to local policy arenas, how they are used by stakeholders, and how they are finally shaping conflicts at the local level and affecting their results. In particular, their potential for empowering poor stakeholders should be of interest for research and development.