SOVEREIGNTY, HUMAN RIGHTS AND THE GLOBAL LAND GRAB

SHITTU JUBRIL A.
2013

ABSTRACT The phenomenon of land grab in recent years has drawn the attention of various interests including international organizations, government and civil society. This is because of the speed at which such large scale acquisition are taking place, the nature of most deals and more importantly the unjustness in which most land deals do not take into consideration the right of the local communities and also small holder farmers. The era of globalization has made it impossible for nations to exist without engaging in some trade or contractual agreement with other state or private investor. States in legitimate exercise of their sovereignty attract foreign investors, but with such right is the responsibility to respect the investor and protect their interests. States also exercise their sovereignty through membership of international organizations, establishment of sovereign wealth funds and direct/indirect support to investors. States pursue commitments at these levels, usually in terms of their national interest. Human rights concerns and their protection guaranteed by numerous international legal instruments are a partial cause of the current trend in global land rush. Before the advent of human rights protection most land acquisitions were based on agreements between parties concerned or were based on the use of force. However, the Charter of the United Nations has frowned against unlawful threat or the use of force against any sovereign state. While land grabs are condemned because of the impact they have on the local population and the environment, it does not change the fact that most land deals are legitimate. It is therefore argued that human rights capture important dimension of the values that are at stake when we discuss or modify the land rights and land use of women, men and children and their should be the focus of states and international organizations in addressing the issue of land grabs.

Shittu Jubril is a graduate with a Bachelors of Science degree in International Law and Diplomacy from Babcock University, Nigeria. He is a member of Nigerian Society of International Law, and associated with the Chartered Institute of Arbitrators, UK (Nigerian Branch). Please forward all correspondence to sh2jubril@ymail.com

TABLE OF CONTENTS
1.0. INTRODUCTION 2.0. THE CONCEPT OF LAND GRAB 3.0. STATE SOVEREIGNTY AND NATIONAL INTEREST 1 2 5

4.0. HUMAN RIGHTS CONCERNS AS A CAUSE OF THE CURRENT TREND IN THE GLOBAL LAND RUSH 5.0. ADDRESSING THE ISSUES 6.0. CONCLUSION REFERENCE 8 10 16

Shittu Jubril is a graduate with a Bachelors of Science degree in International Law and Diplomacy from Babcock University, Nigeria. He is a member of Nigerian Society of International Law, and associated with the Chartered Institute of Arbitrators, UK (Nigerian Branch). Please forward all correspondence to sh2jubril@ymail.com

1.0.

INTRODUCTION

The global rush for land in developing countries is a growing concern among various stakeholders and groups including international organizations, government and civil society. Many scholars have identified the reasons for increased interest in huge hectares of land by foreign countries and domestic investors alike to include the global economic crisis, need to secure food access for the burgeoning population and the search alternative sources of energy in the form of biofuels. Various writers in the literature agree that the global land grab is different from other land grabs which have occurred in times past. Jgerskog, A., Casco, A., Hrsmar, M. and Kim, K. (2012) and GRAIN(2012) have stated that the global rush for land is characterized by the need for green and virtual water, while others such as Landesa (2011) and Deutsch (2012) have cited global crisis and need to secure food production for their growing populations. While it is agreed that there are implications of the current wave of global land acquisition of overseas territory, most of the writings have failed to link the issue of human rights as a factor responsible for the rush experienced mostly in the global south. It is important to note that the current trend of land acquisition is a legitimate exercise of sovereignty by the various nations involved in such acquisition and also those who attract foreign investment. It is also to be emphasized that such deals are carried out in the interest of the nations involved. States have sovereignty in economic relationships especially in areas relating to FDI but with such rights come obligations which erode on

the sovereignty of states even in the legitimate exercise of their sovereignty. However, acquisitions which respect the rights of the sovereign state and protect the rights of the investor while giving attention to the concerns of the population is to be encouraged. This article shall, following a brief overview of the concept of land grab examine the concept of sovereignty and national interest in the context of land grab while highlighting human rights protections as a major cause of the current rush for land and land based resources, before discussing how the issue of land grab can effectively be tackled.

2.0.

THE CONCEPT OF LAND GRAB

Land grabbing is the acquisition of overseas territory by foreign business in ways that are deemed unjust because of the nature of the acquisition and human rights violations which are involved in such acquisitions. It occurs in situations where there is usually no free prior and informed consent of the communities concerned/ affected by the acquisition. Land grabbing is essentially control grabbing. It refers to the capturing of power to control land and other associated resources like water, minerals or forests, in order to control the benefits of its use. (TNI Agrarian Justice Program, 2013) Thus when foreign investor acquires large tracts of land for the purposes of cultivation, ignoring traditional land tenure rights with written or tacit consent and support of the host government it is a land grab (Hberli C., and Smith F., 2013) and according to Merian Research and

CRBM, (2010) many acquisitions involve more than 10,000 - 500,000 hectares worldwide.

According to Oxfam (2012), land acquisitions which involve violation of human rights, in which communities affected are not consulted prior to the execution of the project, and without a thorough assessment of socio-economic and environmental impacts and transparency in the nature of the contract as a result of lack of proper oversight by the government are in essence land grabs. However land grabbing is not restricted to land acquisition as some agreements do not involve direct land acquisition, but seek to secure food supplies through contract farming and investment in rural and agricultural infrastructure, including irrigation systems and roads.

Land grabbing in massive proportions is happening all over the world, threatening not only the survival of small farms but the very food sovereignty of nations. The current estimate of the number of land acquisitions according to GRAIN (2012) total about 56 million hectares, a majority of the deals being found in Africa. The acquisitions of land and government involvement in such acquisitions/ deals come in form of direct acquisitions by government agencies, Sovereign Wealth fund investments, State owned enterprises and even through support given to private sector in investor and host countries and include various areas such as mining, dairy products, biofuels agriculture, among others. (Cotula L, Vermeulen S., Leonard R., Keeley J., 2009)

It is also important to note that behind every land grab is a water grab. Water grab is a control for water resources needed to produce high yield crops. It must be said that most
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land acquired are near water sources such as lakes, dams and rivers and the deals do not take into consideration the water resources to be used. Thus according to GRAIN (2012:3): Hidden behind the current scramble for land is a world-wide struggle for control over water. Those who have been buying up vast stretches of farmland in recent years, whether they are based in Addis Ababa, Dubai or London, understand that the access to water they gain, often included for free and without restriction, may well be worth more over the long-term, than the land deals themselves All of the land deals in Africa involve large-scale, industrial agriculture operations that will consume massive amounts of water. Nearly all of them are located in major river basins with access to irrigation. They occupy fertile and fragile wetlands, or are located in more arid areas that can draw water from major rivers.

With special emphasis on Sub-Saharan Africa, numerous examples of land acquisitions that are located near water sources can be cited including the MaLibya concession of about 100,000ha which involves a diversion of water from the Niger river via a canal 30metres wide stretching a distance of 40km, the Pro-Cana acquisition in Mozambique linked to the nearby Massingir Dam, and also the Saudi Star 10, 000ha acquisition located near the Alwero river in Ethiopia.

While land acquisitions attract foreign investment which can lead to increased exports and creation of employment opportunities, there are major disadvantages in terms of access to and control of resources by the local population, reduced socio-economic conditions, and increased potential for conflict. Such land grabs could also impact the
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biodiversity of an area. This could be as a result of use of industrial modes of agricultural production, use of high yield fertilizers, or by conversion of forests into arable lands. (Graham A., et al, 2010)Various databases covering details about the number, scope, and effects of land acquisition have been provided by GRAIN and FIAN and Land Matrix.

3.0.

STATE SOVEREIGNTY AND NATIONAL INTEREST

Sovereignty as defined in the Island of Palmas Arbitration (Island of Palmas Case

(Netherlands/USA), RIAA II, 870. P.) is a definitive starting point for exploring the
relationship which exists between states and other entities in the international system. It is the ability of state to the exclusion of other states in the international system to perform the functions of a state. While the post-Westphalia world system established the sovereignty of the state in relation to entities in the international system, the existence of globalization and technological advancement made it impossible for a state to retain such control over its territory without some form of external interference either in the form of acquisition of territory by foreign firms and governments who owned such technology and sought such territory for various purposes or the various multilateral organizations who seek to impose their jurisdiction in order to enforce treaty commitment. The establishment of the sovereignty of a state gave it the ability to enter into any form of contractual relationship, albeit with such right came the responsibility to respect the investor and protect their interests. Such commitments have been codified quite succinctly in the various bilateral investment treaties which exist between various states and even multilateral conventions.

The notion of sovereignty was birthed at the conclusion of the Westphalia peace treaty, but became firmly rooted in the Charter of the United Nations. With particular reference to international trade and investment, one may cite the Treaty on Friendship, Commerce and Navigation signed between various States creating rights and responsibilities for states, and also the various BITs and FTAs signed between various countries. In tracing the evolution of a nations sovereignty over her natural resources, one may be informed that the various UNGA resolutions such as the Resolution 1803 of 1962 (Permanent Sovereignty over natural resources, Resolutions 3201; 3281(Charter of Economic Rights and Duties of States, and also international covenants such as the ICESCR of 1966 which establish the sovereignty of a state over its natural resources which is to be expressed in the natural and public interest, and provides that compensation should be prompt effective and adequate.

The era of globalization has made it impossible for nations to exist without engaging in some trade or contractual agreement with other state or private investor. Thus, nations have signed various BITS which govern relations between the state and investors and allow for foreign direct investment. However, it must be said that the rights favour the investor than the host state, especially through the use of stabilization clauses and various standards of treatment such as the FET and MFN that govern relationships. In such relationship, a state cannot invoke its sovereignty as inability to fulfill its contractual obligations (the principle of pacta sunt servanda Article 27 of the VCLT 1969)

By seeking to discourage nations from engaging in their contractual obligations there is a gradual erosion/intrusion in sovereignty. Imposing guidelines might not favour particular states, who seek to engage in certain form of transactions. However an investment which respects the rights of the state and that of the investor, without infringing on the benefits of the local community who have such rights to such lands should be encouraged. Apart from legislation and administrative oversight of investments in land acquisition deals, States also exercise their sovereignty through membership of international organizations, establishment of sovereign wealth funds and direct/indirect support to investors. States pursue commitments at these levels, usually in terms of their national interest. With regards to membership of multilateral organizations, one may cite such institutions as the World Bank, and FAO, groups such as the AU and EU and G8, and other mechanisms such as the ICSID which provide for settlement of disputes between state and arbitrators which are used by states to pursue their sovereign interests. National interests could be common, complementary or conflictual. The current regime of land rights governance reveals a conflict of interest between developed nations and MNEs on the one hand and developing nations on the other hand. The MNE seeks opportunities where the production costs are lowest and sales where the prices are highest, resulting in repatriation of profits to the home country." The host country, on the other hand, seeks to maximize benefits to its economy, which requires the retention of MNE profits within the host economy. (Burt, 1997) Developed countries and developing nations also differ on how best to tackle the issue of land grabs. Between the
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right of the state to engage in contractual agreement, and that of the investor to a favorable clime for the growth of his investment lies human rights issues amongst other issues such as environmental sustainability and food security. We shall focus on Human rights as a major issue arising out of land grabs before moving on to discuss how the phenomenon is to be addressed.

4.0.

HUMAN RIGHTS CONCERNS AS A CAUSE OF CURRENT TREND IN GLOBAL LAND RUSH

Human rights concerns and their protection guaranteed by numerous international legal instruments are a partial cause of the current trend in global land rush and it is only by focusing on these can the issue of land grab be effectively controlled. While some reports (see Rullia M. C., Savioria, A., and DOdoricob, P.(2012) have hinted at possible human rights violations by the government as fallout, most have neglected such human rights concerns as a partial cause of the current trend in global land rush. While land grabs are condemned because of the impact they have on the local population and the environment, it does not change the fact that most land deals are legitimate. Before the advent of human rights protection most land acquisition were based on agreements between parties concerned or were based on the use of force, i.e., conquest, annexation and occupation. Apart from the colonial era which saw the scrambling for and partitioning of Africa and her vast resources by European powers, the Japanese invasion of Manchuria in 1931 could be cited as a good example. The Japanese economic presence and political interest in Manchuria had been growing ever since the end of the

Russo-Japanese War (190405).The Japanese population was growing and in a bid to secure land for her people and also to gain access to natural resources such as oil, rubber, lumber, etc its soil was described as possessing almost exhaustless fertility amidst potential resources in agriculture timber and minerals. Following the Mukden incident staged by Japanese army, Japanese forces invaded Manchuria, and established a puppet government. However, the Charter of the United Nations has frowned against unlawful threat or the use of force against any sovereign state; other relevant instruments proscribe annexation/occupation of foreign territory without consent as experienced in the Gulf War. In response to Israels self-declared annexation of East Jerusalem, the UN Security Council affirmed that acquisition of territory by annexation is forbidden and that the Israeli law declaring East Jerusalem annexed therefore is null and void. Similar considerations were voiced by the International Court of Justice (ICJ) in its Advisory Opinion on the Wall. Thus as states are unable to scramble for territory and resources as was the norm before, they have had to request the consent of the government affected, and this has been done by acquisition of such territories by foreign direct investment. It is indeed a scramble for territory because most of the produce is not sold in the country where it is produced but is exported to the investors country to be sold. Thus, while the use of force was the main tool of land acquisition in the past with different reasons put forward by the governments involved, the new tool being used to acquire land resources is in the form of finance provided by foreign investors and sovereign wealth funds.

Quite similar to what was obtainable in the past; it is merely weak governments that have been victims of such land grabs. China and Kuwait were too weak to respond to the land grabs and it was not without the help of the international community they were able to get their lands back. Presently weak countries have fallen victims of the rush for land. Mali for instance is characterized by a weak government struggling with an insurgency. Congo is also experiencing a government which is faced with various rebel groups including the Seleka rebels who invaded the Central African Republic and overthrew the President. It must also be said that Congo is one of the poorest countries in Africa. Thus, it is argued that the global land rush is prevalent in countries with weak institutions, and structures where there is minimal regard for rights of citizens. In such states administration of land rights and monitoring of such deals to ensure compliance with accepted standards may prove abortive. Thus in as much as deals are transparent, they may not be effective in monitoring or implementation. Moreover, most deals are recognized after they have been concluded.

5.0.

ADDRESSING THE ISSUE OF LAND GRABS

While land grabs are condemned because of the impact they have on the local population and the environment, it does not change the fact that most land deals are legitimate. Acquisitions which respect the rights of the State, protect the rights of the investor, and give attention to the concerns of the population is to be encouraged. The best international legal document which addresses the issue of land grab with a view to the protection of human rights is the Voluntary Guidelines on the Responsible

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Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security adopted by the Committee on World Food Security on 11 May 2012. According to the FAO (2012):

The Guidelines were developed through a broad global partnership of international, regional and national organizations of different types that work together to achieve global changes in governance of tenureInadequate and insecure tenure rights increase vulnerability, hunger and poverty, and can lead to conict and environmental degradation when competing users ght for control of the resources. The governance of tenure is a crucial element in determining if and how people, communities and others are able to acquire rights, and associated duties, to use and control land, sheries and forests(p.13)

The Voluntary Guidelines are not legally binding but carry a force derived from the desire of states to create obligations through commitments which could become binding especially when existing obligations of states in relation to the protection of human rights are considered. In other words, they could be classified as soft law. (FAO, 2012) The Guidelines serve as a reference point for set out principles and internationally accepted standards for practices for the responsible governance of tenure. They provide a framework that States can use when developing their own strategies, policies, legislation, programmes and activities The Guidelines are also intended to contribute to achieving sustainable livelihoods, social stability, housing security, rural development, environmental protection, and sustainable social and economic

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development. The Guidelines are meant to benefit all people in all countries, although there is an emphasis on vulnerable and marginalized people. (FAO, 2012) However, one may also notice the conflict of interest between mainly the developed countries and the developing countries in developing the right approach to land governance. As of June 2013, the G-8 adopted an initiative on transparency which is more or less a reflection of their interests in the land based regime. The approach of the G-8 is to ensure transparency and encourage promotion of legitimate deals through increased access to land resources in developed countries. Thus according to the G8:Lack of transparency around land deals can create a barrier to responsible investment, weaken livelihoods and ignore rights of local communities, create space for corruption and money laundering, reduce space for legitimate business activityEncouraging responsible and sustainable investment in land is essential for economic growth and food security.(UK government, 2013) However, such move has been condemned by various NGOs and Civil society groups who see the move as a ploy to ensure unrestricted access to natural resources and markets. According to a report, the G8 program of action also known as the alliance ensures unrestricted access for multinational companies and to access cash in form of donor funding from such countries, and governments have had to make far reaching changes to their land seed and farming policies not minding the displacement of livelihoods and food security of communities. For instance in January 2012, approximately 70,000 indigenous people that were in the Gambella region in Ethiopia were forcefully evicted/relocated under a villagization program to new villages that lack
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adequate food, farmland, healthcare, and educational facilities. (Human Rights Watch, 2012). Another instance was in the mid 1970s when Cte d'Ivoire was self-sufficient in rice, but under pressure from international donors, the national rice company was privatized, public support for production was dismantled and the market was opened up to imports. Within two decades, two thirds of the rice consumed in the country came from Asia. These imports generated immense profits for the handful of international grain traders and powerful local businessmen who dominate the market. Yet they've been deadly for local production. There are no policy commitments in the framework for Ethiopia or any of the other countries involved to protect peasants and pastoralists from the growing number of land grabs taking place. (Al-Jazeera, 16 September 2012) According to the UN's Food and Agriculture Organisation (FAO, 2012), in low- and middle-income countries farmers invest about $170bn a year three times as much as all other sources of investment combined. In addition, about 70% of the world is fed by smallholders farmers as opposed to corporate farming. Thus, there is an urgent need to focus on protection of human rights, not just the rights of the communities. This is because Human rights therefore provide standards for evaluating processes and outcomes of transnational land acquisitions and, thus, for determining whether they are ethically unacceptable land grabs. (Wisborg, 2013) While business transactions and creation of legislation governing contractual relationships is mainly of domestic concern, issues of human rights are viewed with greater scrutiny. It is argued that issues of forced displacement have potentialities for

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conflict and might create situation of refugees not to talk less of destabilization of regions which are economically fragile. A study by the Rights and Resources Initiative says developing country governments that fail to protect the rights of those using communally held land could spark civil unrest. (Guardian, 2012) Also according to the CICR, the marginalization of indigenous communities during concession negotiations and project implementation has resulted in high tensions around a number of FDI projects. This tension has occasionally led to violence and other forms of social unrest, which could feasibly lead to conditions that might threaten peace in the country. (CICR, 2011) It has been argued that human rights capture important dimension of the values that are at stake when we discuss or modify the land rights and land use of women, men and children. (Wisborg, 2013) Various international instruments contain such protection. For instance, the twin covenants on human rights provide that: All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence (ICCPR 1.2, and the International Covenant on Economic, Social, and Cultural Rights, ICESCR 1.2)

Human rights principlesparticipation, accountability, non-discrimination, transparency, human dignity, empowerment and the rule of laware valid for interventions in agriculture and food production (FAO 2007). Everyone has a human right to own property alone as well as in association with others and not to be

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arbitrarily deprived of this property (UDHR 17). ACHPR (14) confirms that the right to property may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws. Thus, individual, family and community land rights may only be changed on the basis of law that is consistent with human rights (UDHR 17; ACHPR 3, 14, 18). (Wisborg, 2013) The 1966 UN Covenants committed States Parties to creating an international order that recognizes self-determination and free disposal of natural resources; protects individuals against deprivation of the means of subsistence; promotes international assistance and cooperation (ICESCR 2.1, ICCPR 1.2, ACHPR 20, 21); and reforms agrarian systems (ICESCR 11.2). The Voluntary Guidelines require that all programmes, policies and technical assistance to improve governance of tenure must be consistent with the full range of civil, political, economic, social and cultural human rights (1.1, 4.8). (Wisborg, 2013) In focusing on human rights protection amongst other measures, international, specialized and regional organizations have a special role to play in ensuring state compliance with international obligations. The ADVIII recognized that: Urgent attention is needed to: (a) entrench and recognize the land rights of local communities in land laws and facilitate security of all bundles of land rights, interests and claims, especially so for women and other marginalized groups; (b) strengthen land institutions; and (c) monitor mechanisms for LSLBIs. Building institutions to improve land governance can improve local land rights. This includes instituting transparent contractual arrangements and modalities for their enforcementIt is important to also
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examine matters related to human rights for local communities and social equity in policy development and land governance. Issues that pertain to customary rights and related governance institutions require special attention, especially since African Governments are still in their early stages of implementing land policies that better recognize rights of communities in customary land rights jurisdictions.(UNECA, 2012)

6.0.

CONCLUSION

Land grabs are occurring on a large scale not just because of the uncertainties in resource stability and food security but mainly because of the weak framework of protection afforded communities affected, and also weak or non existing frameworks of monitoring and administrative oversight of the implementation of such deals. States and investors will continue to invest in overseas territory in the scramble for resource control because it is in their interest to do so. The current efforts in developing an effective framework to tackle the problems of land grabs merely reflects the interest of states involved and thus a more effective approach will be to focus on issues of common concern such as human rights, food security and also the environment. Human rights concern is a key issue to be addressed if the problem of land grabs is to be addressed. In the present global era of sovereignty and human rights protection, states and international organizations and other stakeholders have a duty to ensure the protection of these rights by ensuring the rights of communities and smallholders farmers to their land are protected.

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