Regulating large-scale agricultural land acquisitions and leases
By Olivier de Schutter
U.N. Special Rapporteur on the right to food
In recent years, large-scale agricultural land acquisitions or leases have become a recurrent phenomenon. According to estimates by IFPRI1, since 2006, nearly 20 millions hectares of agricultural land in developed countries have involved transactions with foreign investors; this is equivalent to that of the French agricultural land mass, or a fifth of that of the European Union.
If foreign investments in agriculture are not bad per se, insofar as they may enable a country to develop its productive capacity, the phenomenon can also permanently destabilize local communities and local food markets.
This is why in the latest report on the issue2, the U.N. Special Rapporteur on the right to food has issued a set of 11 principles to oversee large-scale agricultural land acquisitions or leases, commonly called "land grabbing". These principles are based on international human rights laws, including the right to food, and as the report emphasizes, it is the State’s responsibility to ensure access to food in sufficient quantity and quality to all individuals under its jurisdiction. As Olivier de Schutter rightly points out, land grabbing, results primarily in the failure of the international community to expand investment in agriculture and rural development in developing countries. It is therefore the international community’s duty to control this phenomenon in order to preserve the rights of the poorest populations.
MOMAGRI first brought this subject to the attention of governments and international institutions in mid 2008, when the principles of governance were published. Principles amongst whose ranks agriculture must be considered a global public commodity and land use therefore, first and foremost.
Abstract of Olivier de Schutter’s report on land-grabbing
The Special Rapporteur wishes to make the following recommendations:
1. The negotiations leading to investment agreements should be conducted in full transparency, and with the participation of the local communities whose access to land and other productive resources may be affected as a result of the arrival of an investor. In considering whether or not to conclude an agreement with an investor, the host government should always balance the advantages of entering into such an agreement against the opportunity costs involved, in particular when other uses could be made of the land available, which could be better conducive of the long-term needs of the local population concerned and with the full realization of their human rights.
2. In principle, any shifts in land use can only take place with the free, prior and informed consent of the local communities concerned. This is particularly important for indigenous communities, in view of the discrimination and marginalization they have been historically subjected to. Forced evictions should only be allowed to occur in the most exceptional circumstances. They are only allowable under international law when they are in accordance with the locally applicable legislation, when they are justified as necessary for the general welfare, and when they are accompanied by adequate compensation and alternative resettlement or access to productive land. (…)
3. In order to ensure that the rights of the local communities will be safeguarded at all times, States should adopt legislation protecting these and specifying in detail the conditions according to which shifts in landuse, or evictions, may take place, as well as the procedure to be followed. (…)
4. Investment agreement revenues should be used for the benefit of the local population. Investment contracts should prioritize the development needs of the local population and seek to achieve solutions which represent an adequate balance between the interests of all parties. Depending on the circumstances, arrangements under which the foreign investor provides access to credit and to improved technologies for contract farming, or against the possibility to buy at predefined prices a portion of the crops produced, may be preferable to long-term leases of land or land purchases.
5. Host States and investors should establish and promote farming systems that are sufficiently labour intensive to contribute to employment creation. Labor-intensive modes of production can be highly productive per hectare. Investment agreements should contribute to the fullest extent possible to reinforcing local livelihood options and in particular provide access to a living wage for the local population involved, which is a key component of the human right to food.
6. Host States and investors should cooperate in identifying ways to ensure that the modes of agricultural production shall respect the environment, and shall not accelerate climate change, soil depletion, and the exhaustion of freshwater reserves. (…)
7. Whichever the content of the arrangement, it is essential that the obligations of the investor be defined in clear terms, and that these obligations are enforceable, for instance by the inclusion of pre-defined sanctions in cases of non-compliance. For this mechanism to be effective, independent and participatory ex post impact assessments should be made at predefined intervals. The obligations of the investor should not be limited to the payment of rents, or – in the case of land purchases – to a monetary sum. They should include clear and verifiable commitments related to a number of issues which are relevant to the long-term sustainability of the investment and to its compliance with human rights. (…)
8. In order to ensure that they will not result increase food insecurity for the local population, particularly as the result of increased dependence on international markets or food aid in a context of higher prices for agricultural commodities, investment agreements should include a clause providing that a certain minimum percentage of the crops produced shall be sold on local markets, and that this percentage may increase, in proportions to be agreed in advance, if the prices of food commodities on international markets reach certain levels.
9. Impact assessments should be conducted prior to the completion of the negotiations, in order to highlight the consequences of the investment on the enjoyment of the right to food through (a) local employment and incomes, disaggregated by gender and, where applicable, by ethnic group ; (b) access to productive resources of the local communities, including pastoralists or itinerant farmers ; (c) the arrival of new technologies and investments in infrastructure ; (d) the environment, including soil depletion, the use of water resources and genetic erosion; (e) access, availability and adequacy of food. Only through such impact assessments, which should include a participatory dimension, can it be ensured that the contracts providing for the lease or sale of land will distribute their benefits equitably between the local communities, the host State, and the investor.
10. Indigenous peoples have been granted specific forms of protection of their rights on land under international law. States shall consult and cooperate in good faith with the indigenous peoples concerned in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
11. Agricultural waged workers should be provided with adequate protection and their fundamental human and labour rights should be stipulated in legislation and enforced in practice, consistent with the applicable ILO instruments. Increasing protection of this category of workers would contribute to enhancing their ability and that of their families to procure access to sufficient and adequate food.
The debate on large-scale land acquisitions or leases, which this statement seeks to inform, should not distract us from acknowledging that, to a large extent, the rush towards farmland in developing countries is the result of our own failures. We have failed in the past to adequately invest into agriculture and rural development in developing countries, particularly sub-Saharan Africa. We have failed to promote means of agricultural production which do not deplete the soils and exhaust groundwater reserves. And we are failing today to establish well-functioning and more reliable global markets for agricultural commodities. It would be unjustifiable to seek to better regulate agreements on large-scale land acquisitions or leases, without addressing also, as a matter of urgency, these circumstances which make such agreements look like a desirable option.
1 International Food Policy Research Institute, www.ifpri.org
2 «Large scale land acquisitions and leases : a set of core principles and measures to address the human rights challenge », 11 June 2009