UPDATE: Contemporary Land Grabbing, Research, and Bibliography

By Jootaek Lee

Jootaek (“Juice”) Lee is a librarian and assistant professor at the Rutgers Law School (Newark). Professor Lee is also an adjunct professor and an affiliated faculty for the Program on Human Rights and the Global Economy (PHRGE) at the Northeastern University School of Law, where he has served as Senior Law Librarian (Research Librarian for Foreign, Comparative & International Law) for seven and half years. He, a prolific scholar and author, has been published in numerous articles relating to legal information, legal pedagogy, human rights, and foreign law legal sources in various journals, including Georgetown Environmental Law Review, Law Library Journal, International Journal of Legal Information, Legal Reference Services Quarterly, Globalex, etc.

This article is based on a presentation, “Land Grabbing: Accessing Information to Protect Property Rights of Indigenous People,” given at the Annual Meeting of the American Association of Law Libraries, San Antonio, Texas (July 16, 2014) and its following publication at the Law Library Journal.

Published May/June 2018

See the Archive Version!

1. Introduction

Contemporary land grabbing often involves large-scale land acquisitions by foreign and/or nonindigenous investors. These acquisitions, in turn, cause issues such as land alienation from local communities, human rights violations, and loss of livelihoods and culture.[1] Since the early twenty-first century, investors—whether large- or small-scale, state or non-state, from developed or developing countries—have been buying large areas of land in developing countries, mostly in Sub-Saharan Africa,[2] Southeast Asia, and Latin America. Between 2006 and the middle of 2009, 37 to 49 million acres of arable land were either intended (where there has been an expression of interest and where a contract is under negotiation, but not yet signed) or acquired in the developing countries by foreign investors.[3] According to Land Matrix, since 2000, land deals for agriculture have been made for about 18.5 million hectares of land, and “intended” deals for agriculture cover around 32 million hectares of land.[4]

Researching contemporary land grabbing issues is more complicated than researching those of traditional land grabbing, typically defined as occurring between the colonial period and the early twenty-first century. Research is made more difficult by the complex reasons and motivations behind contemporary land grabbing, the number of stakeholders involved, the interdisciplinary nature of research, the many different types of legal sources to search (for example, international treaties, custom, jurisprudence, soft law, and domestic statutes and customary law), lack of empirical evidence, and scattered resources in many different places. The research is a mixture of international and domestic legal research and legal and non-legal research.

In this research guide, I first investigate the definitions of contemporary land grabbing and land alienation. Next, I delineate various mechanisms and international principles that can be useful for protecting the rights of indigenous and local people relating to land from the attack of state and nonstate actors. Finally, I selectively review several books and articles that provide excellent starting points for contemporary land grabbing research.

2. Contemporary Land Grabbing and Its Definitions

The term “land grabbing” has been defined both broadly and narrowly, depending on the source. Policymakers, nongovernmental organizations (NGOs), and scholars tend to define the term narrowly and descriptively by considering only certain factors, such as land area, subjects (types of land grabbers), purpose, direction, and change of land use, relationships between the affected people and those who receive profits, and so on.[5]

However, recognizing the problems that result from a narrow definition of land grabbing, scholars and civil movements have begun to provide broader definitions. The broader the term is defined, the more comprehensively activists can address and deal with land grabbing issues. Borras et al. have suggested a new definition of contemporary land grabbing:

“[C]ontemporary land grabbing is the capturing of control of relatively vast tracts of land and other natural resources through a variety of mechanisms and forms that involve large-scale capital that often shifts resource use orientation into extractive character, whether for international or domestic purposes, as capital’s response to the convergence of food, energy and financial crises, climate change mitigation imperatives, and demands for resources from newer hubs of global capital.”[6]

3. International Principles, Mechanisms, and Movements

3.1. Recent Development of International Principles Relating to Contemporary Land Grabbing

Various global-level efforts have been made to address land grabbing issues such as food scarcity, human rights violations, and right to land. One of the major developments is the Guiding Principles on Business and Human Rights,[7] adopted as Resolution 17/4 by the U.N. Human Rights Council on June 16, 2011.[8] The Guiding Principles emphasize the state duty to protect human rights, the corporate responsibility to respect human rights, and victims’ access to remedy, the so-called Protect, Respect, and Remedy Framework. The corporate responsibility to respect human rights is followed by the OECD in Guidelines for Multinational Enterprises, the International Organization for Standardization in the Guidance on Social Responsibility (ISO 26000), the International Finance Corporation in the Sustainability Framework and Performance Standards, and the European Commission in Communication on Corporate Social Responsibility.[9]

Another major development to address and fix the human rights protection gap[10] was made in Maastricht. A group of experts[11] in international law and human rights adopted the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights on September 28, 2011. The Maastricht Principles preamble emphasizes that the extraterritorial acts and omissions of state and nonstate actors alike threaten the human rights of people, especially their economic, social, and cultural rights. Further, these acts deprive and deny access to essential land, resources, goods, and services. The Maastricht Principles address states’ extraterritorial obligations (ETOs) and is a culmination of efforts by the human rights community starting from 1999 by the U.N. Committee on Economic, Social, and Cultural Rights.

In 2007, the ETO Consortium was launched by NGOs and experts. This transnational network of experts is making efforts to strengthen ETOs and to counteract the negative effects of Transnational Corporations (TNCs) or Multinational Corporations (MNCs) in developing countries by strengthening ETOs. It established a thematic focal group devoted to land grabbing.[12] In 2010, the World Bank, the FAO, the U.N. Conference for Trade and Development (UNCTAD), and the International Fund for Agricultural Development (IFAD) adopted the Principles for Responsible Agricultural Investment that Respect Rights, Livelihoods and Resources (PRAI). The FAO separately adopted a broad land-related principle, Voluntary Guidelines on the Responsible Governance on Tenure of Land, Fisheries and Forests in the Context of National Food Security in 2012. While the Voluntary Guidelines do not directly provide, protect, and guarantee the right to land, they suggest that securing tenure rights and equitable access to land, fisheries, and forests is essential for realization of the right to adequate food.

The special rapporteur on the right to food, Olivier De Schutter, also presented a report to the Human Rights Council, entitled Large-Scale Land Acquisitions and Leases: A Set of Minimum Principles and Measures to Address the Human Rights Challenge of Large-Scale Land Acquisitions or Leases.[13] It suggests that the human right to food cannot be realized if local people lose access to land without being provided with suitable alternatives.[14] The Minimum Principles extend the principle of free, prior, and informed consent to nonindigenous rural communities[15] and urges states to assist local communities to make collective registration of lands.[16] While the Minimum Principles suggest desirable, ethical directions to the investors and target states, they were endorsed by only a small number of states since they were presented as an annex of a special rapporteur without being discussed in depth among international actors and states. Some transnational activists criticized the Minimum Principles since they could legitimize the very practice of land grabs.[17] The biggest problem of these guidelines and principles is that they are nonbinding.

In 2014, the United Nations High Commissioner for Human Rights submitted a report (E/2014/86), offering a human rights analysis of land-related issues, in particular on land management and laying out the criteria that states should apply when considering land and human rights issue in relation to specific groups and existing human rights. The report suggests that a human rights-based approach to land issues allows rights-holders to claim their rights and enjoins states and non-state actors to comply with their obligations (¶67). It further recommends the need to secure tenure of land to the most vulnerable.

3.2. Traditional Human Rights Principles That Apply to Contemporary Land Grabbing

No universal human right to land was provided in traditional human rights instruments. Many general principles drawn from human rights instruments and documents, however, do apply to state and nonstate actors and protect the rights of rural and indigenous people from land alienation.[18] Article 11(2) of the ICESCR and Article 14(2)(2) of CEDAW expressly mentions land. Major principles activists can utilize are: self-determination, non-discrimination and equality, right to life, right to an adequate standard of living, right to food, right to water, right to effective judicial remedy, freedom of expression, freedom of assembly, and right to take part in public affairs. The following compilation of international instruments and documents are the major sources of these principles.

3.3. Global Institutionalized Systematic Mechanisms and Movements to Protect the Land Rights of Indigenous People

Various intergovernmental organizations (IGOs) and nongovernmental organizations (NGOs) have been working to protect indigenous people’s right to land. IGOs working on this issue include the U.N. Permanent Forum on Indigenous Issues (UNPFII), the U.N. Human Rights Council through the Expert Mechanism on the Rights of Indigenous Peoples, the Working Group on Indigenous Population, the Special Rapporteur on the Rights of Indigenous People, the Office of the Special Rapporteur on the Rights of Indigenous Peoples of the Organization of American States (OAS),[19] the African Commission on Human and People’s Rights: Working Group on Indigenous Populations/Communities in Africa,[20] the Asia Indigenous Peoples Pact (AIPP),[21] and the International Labor Organizations (ILO). NGOs include the Assembly of First Nations, the World Council of Indigenous Peoples, and Survival International.

Until 2007, however, few global, institutionalized systematic mechanisms were available to protect the land rights of local and rural people and minorities who cannot be included under the category of indigenous people. As mentioned above, in 2007, the ETO Consortium was launched by NGOs and experts. The World Bank, the FAO, the UNCTAD, and the IFAD also collaborated on contemporary land grabbing issues and adopted the PRAI and the Voluntary Guidelines, even though they are merely recommendations. FAO sees land grabbing as an emerging issue and devotes a webpage to it with the title of Foreign Investments in Agriculture for Food Security.

The U.N. Committee on World Food Security (CFS)[22] and the World Food Programme may be good starting points to approach land grabbing issues based on the right food and food security policies. The final report of the 40th Session of the CFS notes the multiple and complex relationships between biofuels and food security, dynamic and complex food prices affected by the production and consumption of biofuels, and competition between biofuel crops and food crops due to current biofuel production. The report asks states to add to existing guidelines, to minimize the risks and maximize the opportunities of biofuels in relation to food security.[23] The report also invites the FAO to propose a program of work considering food security concerns and legitimate land tenure rights.[24] Furthermore, the report tells members to “strongly promote responsible governance of land and natural resources with emphasis on securing access and tenure for smallholders, particularly women, in accordance with the Voluntary Guidelines.”[25]

International agrarian movements such as La Vía Campesina and International Land Coalition, and NGOs such as GRAIN and FIAN, are also striving to solve the issue of agrarian land alienation of local and rural communities and to protect their access to land and water. These organizations scrutinize investors and lenders, especially by leveraging reputational risk, and make investors and lenders pressure agribusiness companies and local enterprise to protect local people’s land rights.[26] Furthermore, they suggest alternatives to large land deals and help to facilitate “constructive dialogue” with investors, lenders, agribusiness companies, governments, and federations of rural producer organizations on how these alternatives could be upscaled.[27] The following international movements, coalitions, and NGOs[28] are actively working on resolving contemporary land grabbing issues, and their websites are excellent sources for cutting-edge information and empirical data.

4. Selected Treatises, Articles, and Reports

Since the 2007–2008 world food crisis, plenty of literature on contemporary land grabbing has been created. Several comprehensive land grabbing books[29] have been published. IGOs such as FAO, NGOs such as GRAIN[30] and FIAN,[31] consortiums such as the ILC, and research institutes such as the IFPRI have produced numerous reports and articles relating to contemporary land grabbing issues. Scores of scholarly articles also have been published, mainly in the Journal of Peasant Studies, the Journal of Agrarian Change, the Journal of Development Studies, and the Third World Quarterly. What follows is a selectively reviewed list of books, articles, and reports with annotations, which will provide great starting points for contemporary land grabbing research.

4.1. Selected Treatises

4.2. Selected Articles and Reports

5. Conclusion

The lack of understanding on issues relating to contemporary land grabbing among investors, lenders and agribusiness companies, and governments in investing countries has worsened problems relating to contemporary land grabbing, even though these powerful actors control many elements of contemporary land grabs. Comprehensive and effective research based on both quantitative and qualitative empirical evidence, contextually explains the contemporary land grabbing issues in a specific time and place, and also reflects various international legal principles and mechanisms. The research can help all parties better understand various aspects of large-scale land deals and their accompanying problems.

Other fruitful areas of research would include relevant legal and social science theories, such as the right to dignity, which can support the arguments of land grabbing movements and activists. Furthermore, alternative solutions and strategies to industrial agriculture and corporate-controlled food systems could be analyzed and suggested resources given. Various examples and models of agro-ecological and bio-diverse family farming, which can ensure food sovereignty of local and indigenous peoples, could also be useful additions to the dialogue.[35]

[1] See Dynamics Overview: Intention of Investment, Land Matrix; Seized: The 2008 Land Grab for Food and Financial Security, Grain (Oct. 24, 2008).

[2] According to Food & Agricultural Organization (FAO) estimates, there are 400 million hectares of available land—land with less than twenty-five people per square kilometer—of which 202 million can be found in Sub-Saharan Africa. Stefano Liberti, Land Grabbing: Journeys in the New Colonialism 91 (2013). Two-thirds of the Sub-Saharan African land deals are made in Ethiopia, Ghana, Liberia, Madagascar, Mozambique, South Sudan, and Zambia. See Lester R. Brown, Full Planet, Empty Plates 104 (2012).

[3] See Shepard Daniel & Anuradha Mittal, The Great Land Grab: Rush for World’s Farmland Threatens Food Security for the Poor 1 (2009); see also Land Grabs Leave Africa Thirsty, Grain (Feb. 15, 2012).

[4] See Dynamics Overview, supra note 1.

[5] Rolf Künnemann & Sofía M. Suárez, International Human Rights and Governing Land Grabbing: A View from Global Civil Society, in Land Grabbing and Global Governance 128 (Matias E. Margulis et al. eds., 2014); see also Saturnino M. Borras Jr. & Jennifer C. Franco, A Land Sovereignty Alternative? Towards a People’s Counter-Enclosure (2012), available here; Saturnino M. Borras Jr. & Jennifer C. Franco, Global Land Grabbing and Trajectories of Agrarian Change: A Preliminary Analysis, 12 J. Agrarian Change 34–59 (2012); Tirana Declaration, Int’l Land Coal (May 2011); Seized, supra note 1.

[6] Id. at 851.

[7] Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, U.N. Human Rights Council, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011) (by John Ruggie).

[8] The Special Representative, John Ruggie, started an investigation in 2005 and annexed the Guiding Principles to his final report to the Human Rights Council. Id. They were later endorsed by the Human Rights Council in its Resolution 17/4 of June 16, 2011. See Shift.

[9] Id.

[10] The gaps include:

[11] Forty experts include current and former members of international human rights treaty bodies, regional human rights bodies, and special rapporteurs of the U.N. Human Rights Council.

[12] It recognizes a global process where foreign TNCs and states conclude agreements with target countries to take control of lands, threatening a self-determined life of local and indigenous people. See ETOs for Human Rights Beyond Borders.

[13] Special Rapporteur on the Right to Food, Addendum: Large-Scale Land Acquisitions and Leases: A Set of Minimum Principles and Measures to Address the Human Rights Challenge, Human Rights Council, U.N. Doc. A/HRC/13/33/Add.2 (Dec. 28, 2009) (by Olivier De Schutter).

[14] Id. at ¶ 4.

[15] Id. Annex, principle 2.

[16] Id. Annex, principle 3.

[17] Prischilla Claeys & Gaëtan Vanloqueren, The Minimum Human Rights Principles Applicable to Large-Scale Land Acquisitions or Leases, in Land Grabbing and Global Governance at 193, 196.

[18] Even in 2009, it was unclear that existing national laws and international standards were sufficient to regulate this emerging phenomenon of land grabbing; some scholars viewed this land grabbing as a “simple resurgence of investments typical of the colonial era.” Id. at 193.

[19] The Inter-American Commission on Human Rights (IACHR) approved the Proposed American Declaration on the Rights of Indigenous Peoples, and it also approved a report titled The Human Rights Situation of the Indigenous People in the Americas. Inter-Am. Comm’n on Human Rights, Org. of Am. States, Draft American Declaration on the Rights of Indigenous People.

[20] Working Group on Indigenous Populations/Communities in Africa, African Comm’n on Human & Peoples’ Rights.

[21] The AIPP is a regional organization founded in 1988. As of 2014, there are 47 members from 14 countries in Asia with 14 National Formations, 15 Sub-national Formations, and 18 Local Formations. See here; see also Asia Indigenous Peoples Pact, Overview of the State of Indigenous Peoples in Asia (May 2014)

[22] The Committee on World Food Security (CFS) is an intergovernmental body providing a forum for food security policies. It also created the High Level Panel of Experts on Food Security and Nutrition (HLPE) in 2009 to provide expert advice. Comm. on World Food Sec.

[23] These include the CFS Global Strategic Framework for Food Security and Nutrition (GSF); the Voluntary Guidelines on Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT); the Voluntary Guidelines for the Progressive Realization of the Right to Adequate Food in the Context of National Food Security (RtF); The Global Bioenergy Partnership (GBEP) Sustainability Indicators for Bioenergy and FAO Bioenergy and Food Security (BEFS). Id.

[24] Id. at ¶ 22.

[25] Id. at ¶ 41.

[26] Cotula & Blackmore at 72–73.

[27] Id. at 73. They sometimes raise transnational litigation for corporate accountability and leverage opportunities provided by international trade arrangements. Id. at 78.

[28] Here, general international human rights and environmental NGOs (e.g., Greenpeace, Amnesty International, Human Rights Watch, Human Rights First, Oxfam) are not dealt in this article while they are also vigorously working on the contemporary land grabbing issues.

[29] See, e.g., Land Grabbing and Global Governance, 20; Liberti.

[30] See, e.g., Dynamics Overview, Grain, supra note 1.

[31] See, e.g., Künnemann & Suárez at 128.

[32] Midstream pressure points also include actions such as regulation of land acquisition by foreign investors and capacity support for governments to govern investment processes effectively, and for communities to analyze, deliberate and negotiation. Cotula & Blackmore at 4.

[33] “The IFC and FIAs are employing a number of methods to assist investors to overcome obstacles that inhibit investment in foreign land markets.” Daniel & Mittal at 7.

[34] “Commercial land deals are coming into direct conflict with land reform efforts in many developing countries.” Id. at 14.

[35] See Göran Eklöf, Joan Baxter & Alberto Villareal, Evaluation of GRAIN’s Work on Land Grabbing: Executive Summary and Recommendations.