Regulating Land Grabs: Third Party States, Social Activism and International Law

Brilmayer, Lea; Moon, William J.

doi:10.1007/978-94-007-7778-1_6

Lea Brilmayer⁵ &
William J. Moon⁶

1581 Accesses
2 Citations

Abstract

This chapter explores how international law may regulate large-scale leases and acquisitions of land (“land grab”) that have accelerated in pace and scope in recent years. We start by identifying why the land grab phenomenon concerns food security. In particular, we observe that the lessor countries (those where the land is located) are almost invariably states plagued by corruption, lack of democracy, dependence on food aid, and weak property rights. Where agents (state leaders) have conflicts of interests with their principals (citizens) it cannot be assumed that these transactions will work to the local population’s advantage. After examining why international investment law is not equipped to police these transactions, we turn to sources within trade law. Because trade law concerns the cross border flow of products, it has the potential to de-incentivize food from leaving land grabbed states and deter similar transactions in the future. The central question, then, is whether World Trade Organization (WTO) law accommodates strategies that are designed specifically to discourage particular categories of free trade. Drawing on recent WTO jurisprudence, we propose labeling laws and import restrictions as potential regulations that may be adopted by third party states.

Lea Brilmayer is the Howard M. Holtzmann Professor of International Law at Yale Law School. William J. Moon is an associate at Boies, Schiller & Flexner, LLP in New York City.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution

Chapter: USD 29.95; Price excludes VAT (USA)

eBook: USD 84.99; Price excludes VAT (USA)

Softcover Book: USD 109.99; Price excludes VAT (USA)

Hardcover Book: USD 109.99; Price excludes VAT (USA)

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

1.
Vivienne Walt, The Breadbasket of South Korea: Madagascar, Time, Nov. 23 2008.
2.
Id.
3.
Id.
4.
Madagascar Leader Axes Land Deal, BBC News, Mar. 19, 2009, http://news.bbc.co.uk/2/hi/africa/7952628.stm.
5.
See, e.g., Center for Human Rights and Global Justice at NYU School of Law, Foreign Land Deals and Human Rights: Case Studies on Agricultural and Biofuel Investment (2010).
6.
Environmentalists, for instance, have raised concern over land degradation, water pollution, and deforestation associated with industrialized agricultural production. See Alison Graham et al., FIAN, “Advancing African Agriculture” (AAA): The Impact of Europe’s Policies and Practices on African Agriculture and Food Security – Land Grab Study (2010).
7.
For a general overview, see Food and Agriculture Organization of the United Nations [FAO], Trade Reforms and Food Security: Conceptualizing the Linkages (2003).
8.
The Special Rapporteur on the Right to Food, Report of the Special Rapporteur on the Right to Food, Olivier De Schutter: Large-scale Land Acquisitions and Leases: A Set of Minimum Principles and Measures to Address the Human Rights Challenge, delivered at the 13th Session of the Human Rights Council, U.N. Doc. A/HRC/13/33Add.2 (Dec. 28, 2009).
9.
The World Bank, Principles for Responsible Agricultural Investment that Respects Rights, Livelihoods and Resources (Jan. 25, 2010).
10.
See, e.g., Saturnino Borras Jr. & Jennifer Franco, From Threat to Opportunity? Problems with the Idea of a “Code of Conduct” for Land-Grabbing, 13 Yale Hum. Rts. & Dev. L.J. 507 (2010).
11.
GRAIN, Land Grab Deals (Jan. 2012), available at http://www.grain.org/article/entries/4479-grain-releases-data-set-with-over-400-global-land-grabs [hereinafter GRAIN 2012 Report].
12.
Ethiopia: Thousands Driven Out in Land Grab, United Press Int’l, Jan. 18, 2012, http://www.upi.com/Business_News/Energy-Resources/2012/01/18/Ethiopia-Thousands-driven-out-in-land-grab/UPI-60071326912191/.
13.
Id.
14.
Hedge Funds ‘Grabbing Land’ in Africa, BBC News, June 8, 2011, http://www.bbc.co.uk/news/world-africa-13688683.
15.
John Vidal & Claire Provost, US Universities in Africa ‘Land Grab,’ The Guardian, June 8, 2011.
16.
See Sonja Vermeulen & Lorenzo Cotula, Over the Heads of Local People: Consultation, Consent, and Recompense in Large-scale Land Deals for Biofuels Projects in Africa, 37 J. Peasant Stud. 899, 906 (2010).
17.
Sue Branford, Food Crisis Leading to an Unsustainable Land Grab, Nov. 21, 2008, The Guardian, http://www.guardian.co.uk/environment/2008/nov/22/food-biofuels.
18.
Cecilie Friis & Anette Reenberg, Land Grab in Africa: Emerging Land System Drivers in a Teleconnected World 7 (Global Land Project Report No. 1, 2010) [hereinafter GLP Report].
19.
GRAIN 2012 Report, supra note 11. The list analyzed in the Report is not exhaustive. It only documents those deals that “were initated after 2006, have not been cancelled, are led by foreign investors, are for the production of food crops, and involve large areas of land.” GRAIN, GRAIN Releases Data Set With Over 400 Global Land Grabs, http://www.grain.org/article/entries/4479-grain-releases-data-set-with-over-400-global-land-grabs (last visited Aug. 3, 2012).
20.
Klaus Deininger & Derek Byerlee, Rising Global Interest in Farmland: Can It Yield Sustainable and Equitable Benefits?, The World Bank xiv (2011) [hereinafter World BankReport 2011].
21.
Id.
22.
Id. at xxxiv.
23.
GLP Report, supra note 18.
24.
Alan Bjerga & Luzi Ann Javier, Foreign Investors Increase ‘Land Grabs,’ Harming poor Farmers, Oxfam Says, Bloomberg, Sept. 22, 2011.
25.
Share The World’s Resources, Land Grabbing: the End of Sustainable Agriculture?, May 6, 2009, http://www.stwr.org/food-security-agriculture/land-grabbing-the-end-of-sustainable-agriculture.html.
26.
World Bank Report 2011, supra note 20, at 15.
27.
U.S. Biofuel Target Could be More Expensive, Commodity Online, Feb. 18, 2011, http://www.commodityonline.com/news/US-biofuel-target-could-be-more-expensive-36584-3-1.html; John Vidal, How Food and Water are Driving a 21 ^st Century African Land Grab, The Guardian, Mar. 7, 2010.
28.
GRAIN 2012 Report, supra note 11.
29.
Vidal & Provost, supra note 15. See also Vermeulen & Cotula, supra note 16, at 903 (arguing that plantation-based investments can create major repercussions for local food security).
30.
Share The World’s Resources, supra note 25.
31.
See Sam Moyo, The Land Occupations Movement and Democratisation: The Contradictions of the Neoliberal Agenda in Zimbabwe, World Summit 1 (2002).
32.
See Lea Brilmayer, From ‘Contract’ to ‘Pledge’: The Structure of International Human Rights Agreements, 77 Brit. Y.B. Int’l L. 163, 165 (2007).
33.
For instance, the Stolper-Samuelson theorem predicts that abundant factors in an economy gain from trade while the scarce factors lose. See Wolfgang F. Stolper & Paul A. Samuelson, Protection and Real Wages, 9 Rev. Econ. Stud. 58 (1941).
34.
A massive famine in Ethiopia during the early 1970s that triggered the collapse of the Haile Selassie regime is an excellent example. See Peter Koehn, Ethiopia: Famine, Food Production, and Changes in the Legal Order, 22 Afr. Stud. Rev. 58 (1979).
35.
Bruce Bueno de Mesquita et al., The Logic of Political Survival (2003).
36.
Lea Brilmayer, Secession and Self-Determination: A Territorial Interpretation, 16 Yale J. Int’l L. 177 (1991).
37.
ECONOMIST INTELLIGENCE UNIT, DEMOCRACY INDEX 2010: DEMOCRACY IN RETREAT (2010) [hereinafter ECONOMIST INTELLIGENCE UNIT].
38.
Id. at 1.
39.
Five countries on the list are classified as “Authoritarian Regimes,” two are classified as “Flawed Democracies,” and six are classified as “Hybrid Regimes.” None of the top land lessor states were classified as “full democracies” where “basic political freedoms and civil liberties are respected.” Id.
40.
See e.g., Susan Rose-Ackerman, Corruption and Government: Causes, Consequences, and Reform 91 (1999).
41.
Id. at 3–5.
42.
Shyamal K. Chowdhury, The Effect of Democracy and Press Freedom on Corruption: An Empirical Test, 85 Econ. Letters 93 (2004).
43.
Transparency International, Frequently Asked Questions about the Corruption Perceptions Index, http://cpi.transparency.org/cpi2011/in_detail/.
44.
Id.
45.
U.N. WORLD FOOD PROGRAMME [WFP], WFP ANNUAL REPORT 2010 (2010) [hereinafter WFP 2010 REPORT].
46.
Italic
47.
The WFP is the principle international organization that responds to acute food shortages. In 2009 alone, the WFP provided food and nutrition assistance for 101.8 million people around the globe. Id.
48.
Nigeria’s local conditions (e.g., arable land, tropical climate), coupled with a relatively high GNI per capita, likely accounts for why the state is less prone to acute food shortages.
49.
GLP Report, supra note 18.
50.
Carol Schachet, US Aid to Ethiopia Supports Forced Relocations for Land Grabs, Grassroots Int’l, Jan. 26 2012 (“Ethiopia is the largest recipient of US food aid. In FY 2010, the US government provided $932.6 million in assistance, including more than $451 million in food aid.”).
51.
WFP 2010 Report, supra note 45.
52.
For a historical perspective on the issue, see Carmen Gonzalez, The Global Food Crisis: Law, Policy, and the Elusive Quest for Justice, 13 Yale Hum. Rts. & Dev. L.J. 462 (2010).
53.
Graham Hancock, Lords of Poverty: The Power, Prestige, and Corruption of the International Aid Business (1992); Dambisa Moyo & Niall Ferguson, Dead Aid: Why Aid is Not Working and How There is a Better Way for Africa (2009).
54.
By weak legal regimes, we are simply referring to the difficulty in enforcing legal titles to particular land. We recognize that there are many ways of protecting communal interests attached to land, including usufruct rights that do not rely on Western notions of private property.
55.
Business Analysis and Features, Land Grab: The Race for the World’s Farmland, The Independent, May 3, 2009.
56.
Klaus Deininger et al, Land Policies for Growth and Poverty Reduction: A World Bank Policy Research Report (2003).
57.
AMERICANS FOR TAXATION REFORM FOUNDATION, INTERNATIONAL PROPERTY RIGHTS INDEX 2012: DATA (2012).
58.
One account from a farmer in Mali describes the phenomenon: “We have been living in our villages for hundreds of years, yet nobody came and told us about these projects. Then one day, this machine came and started to dig. They gave us a paper which we could not read…. They dug up a cemetery, they robbed us of our harvest and ruined our land.” GRAIN, Farmers Mobilise to Find Solutions Against Land Grabbing, Nov. 17, 2011, http://www.grain.org/bulletin_board/entries/4408-farmers-mobilise-to-find-solutions-against-land-grabbing.
59.
Vandana Shiva, The Real Reasons for Hunger, The Guardian, June 23, 2002.
60.
In order for the neoclassical trade model to work, we would have to assume that the land-leases will be used for food production in sufficient proportions to increase global food supply. This assumption may not hold true, for many things can grow on land. Indeed, a significant portion of the large-scale foreign land acquisitions are being used for the production of sunflowers, biofuels, cotton, among other non-food related production. Others are unoccupied and used for the purpose of financial investment or real estate “brokerage” services. See GRAIN 2012 Report, supra note 11.
61.
Amartya Sen, Poverty and Famines: An Essay on Entitlement and Deprivation (1984).
62.
We note, of course, that agricultural trade is still heavily regulated. The point is that agricultural trade is increasingly moving towards “market-oriented” policies under international trade law.
63.
Sources of investment law include international custom and treaty law. See Foreign Investment Disputes: Cases, Materials and Commentary (Raymond Doak Bishop, James Crawford & W. Michael Reisman eds., 2005).
64.
Andreas F. Lowenfeld, Investment Agreements and International Law, 42 Colum. J. Transnat’l L. 123 (2003). The International Centre for the Settlement of Investment Disputes (ICSID) and the United Nations commission on International Trade Law (UNCITRAL) are the primary fora that adjudicate investor-state arbitrations.
65.
See William J. Moon, Essential Security Interests in International Investment Agreements, 15 J. Int’l Econ. L. 481 (2012).
66.
For example, Ethiopia has entered into agreements with India (2007), Spain (2009), the United Kingdom (2009); The Democratic Republic of Congo has entered into agreements with India (2010), Italy (2006). See United Nations Conference on Trade and Development, Country-specific Lists of BITs, http://archive.unctad.org/Templates/Page.asp?intItemID=2344&lang=1 [hereinafter List of BITs].
67.
See M.J. Peterson, Recognition of Governments: Legal Doctrines and State Practice 1–2 (1997).
68.
David Collins, Alternative Dispute Resolution for Stakeholders in International Investment Law, 15 J. Int’l Econ. L. 673, 674 (2012).
69.
Efforts to create a multilateral investment regime, like the Multilateral Agreement on Investment, have been proposed, although they have failed thus far. See David Singh Grewal, Network Power and Global Standardization: The Controversy over the Multilateral Agreement on Investment, 36 Metaphilosophy 128 (2005).
70.
This hypothetical is based on an actual transaction between Lonrho (a U.K.-based company) and Angola in 2009. See GRAIN 2012 Report, supra note 11, at 2.
71.
The Angola-United Kingdom BIT, technically, has been signed but has not entered into force. See List of BITs, supra note 66.
72.
Third party states may also address the issue through food aid. For an excellent commentary on the link between food security and food aid, see Ruosi Zhang, Food Security: Food Trade Regime and Food Aid Regime, 7 J. Int’l Econ. L. 565 (2004).
73.
Editorial, Russia as a WTO Member, The Japan Times, Jan. 16, 2012.
74.
Legal Problems of International Economic Relations: Cases, Materials and Text (John H. Jackson, William J. Davey & Alan O. Sykes, Jr. eds., 5th ed. 2008).
75.
Oona Hathaway & Scott J. Shapiro, Outcasting: Enforcement in Domestic and International Law, 121 Yale L.J. 252 (2011). See also Juscelino F. Colares, The Limits of WTO Adjudication: Is Compliance the Problem?, 14 J. Int’l Econ. L. 403 (2011).
76.
See Jessica Karbowski, Note, Grocery Store Activism: A WTO Compliant Means to Incentivize Social Responsibility, 49 Va. J. Int’l L. 727, 740–41 (2009).
77.
See Joseph A. Lanasa III, Rules of Origin and the Uruguay Round’s Effectiveness in Harmonizing and Regulating Them, 90 Am. J. Int’l L. 625 (1996).
78.
Both are imperfect measures. Country-of-origin labelling is likely to be overbroad, since it would require labelling on goods from a particular state regardless of the conditions surrounding its production. Social labelling avoids this problem but lacks a bright-line standard, given that it is difficult to develop rules on what would constitute as “land grab” safe goods.
79.
See Appellate Body Report, European Communities—Trade Description of Sardines, WT/DS231/AB/R, adopted 23 Oct. 2002, DSR 2002:VIII, 3359, para. 176.
80.
Agreement on Technical Barriers to Trade, art. 2.2, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter TBT Agreement].
81.
Italic
82.
Panel Report, United States—Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/AB/R, WT/DS386/AB/R (Nov. 18, 2011).
83.
Article 2.2 of TBT Agreements provides a non-exhaustive list of legitimate objectives: “security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment.” Id.
84.
Appellate Body Report, United States—Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/AB/R, WT/DS386/AB/R (June 29, 2012) [hereinafter U.S.-COOL Appellate Body Decision].
85.
Id. at para. 439.
86.
Appellate Body Report, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R (May 16, 2012).
87.
Id. at paras. 341–42.
88.
Id. at para. 232.
89.
Id. at para. 297.
90.
Labeling laws also carry the risk of being used as a protectionist instrument. See Bona Cheyne, Proportionality, Proximity and Environmental Labelling in WTO Law, 12 J. Int’l Econ. L. 927 (2009).
91.
See Alison L. Saswka & William A. Kerr, Challenging US Country of Origin Labelling at the WTO: The Law, the Issues and the Evidence, CATPRN Trade Policy Brief 2011–05 (Mar. 2011).
92.
Janyce McGregor, Canada Wins U.S. Trade Fight Over Meat Labeling, CBC News Nov. 18 2011.
93.
World Trade Organization, Agriculture: Explanation, available at http://www.wto.org/english/tratop_e/agric_e/ag_intro02_access_e.htm
94.
Id. (“Article 4.2 of the Agreement on Agriculture does not prevent the use of non-tariff import restrictions consistent with the provisions of the GATT or other WTO agreements which are applicable to traded goods generally (industrial or agricultural). Such measures include general exceptions (Article XX of GATT)”).
95.
XX(a) and XX(b) seem most relevant in the food security context. Article XX(a) concerns measures that are “necessary to protect public morals,” while Article XX(b) addresses measures that are “necessary to protect human, animal or plant life or health.” See General Agreement on Tariffs and Trade 1994, art. XX, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 17 (1999), 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994) [hereinafter GATT 1994].
96.
In Korea-Beef, the Appellate Body indicated that “the more vital or important those common interests or values are, the easier it would be to accept as "necessary" a measure designed as an enforcement instrument. Appellate Body Report, Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, DSR 2001:I, 5 (adopted Jan. 10, 2001). See also Michael Ming Du, Autonomy in Setting Appropriate Level of Protection Under the WTO Law: Rhetoric or Reality?, 13 J. Int’l Econ. L. 1077, 1094 (2010).
97.
Panel Report, United States—Restrictions on Imports of Tuna, WT/DS21/R (Sept. 3, 1991) (heirenafter Tuna I).
98.
GATT Panel Report, United States—Restrictions on Imports of Tuna, DS29/R, 16 June 1994, unadopted. Tuna II mentioned here refers to a GATT-era case adjudicated in 1994 and should not confused with the WTO decision rendered in 2012.
99.
Panel Report, United States—Restrictions on Imports of Tuna, WT/DS29/R, 5.15 (adopted June 16, 1994) (hereinafter Tuna II).
100.
World Trade Organization, Mexico etc Versus US: ‘Tuna-Dolphin,’ available at http://www.wto.org/english/tratop_e/envir_e/edis04_e.htm.
101.
Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, DSR 1998:VII, 2755, 133 (adopted Nov. 6, 1998 [hereinafter U.S.-Shrimp]
102.
Sarah Joseph, Blame it on the WTO: A Human Rights Critique 106 (2011).
103.
U.S.-Shrimp, supra note 101.
104.
Id. at para. 158.
105.
GATT 1994, supra note 95, art. XX.
106.
See Salmon Bal, International Free Trade Agreements and Human Rights: Reinterpreting Article XX of the GATT, 10 Minn. J. Global Trade 62, 102–06 (2001); Asif H. Qureshi & Malcolm D. Evans, Extraterritorial Shrimps, NGOs and the WTO Appellate Body, 48 Int’l & Comp. L.Q. 199 (1999).
107.
Amartya Sen, Review of Late Victorian Holocausts by Mike Davis, N.Y. Times, Feb. 18, 2001.
108.
See Mike Davis, Late Victorian Holocausts: El Niño Famines and the Making of the Third World (2000).
109.
The express objective of the Agreement on Agriculture was to make the agricultural sector more market oriented by reducing domestic support and export subsidies. See Joseph A. McMahon, The WTO Agreement on Agriculture 10–13 (2006).

Author information

Authors and Affiliations

International Law, Yale Law School, P.O. Box 208215, 06520, New Haven, CT, USA
Lea Brilmayer
Boies Schiller & Flexner, LLP, 575 Lexington Avenue, 7th Floor, 10022, New York, NY, USA
William J. Moon

Authors

Lea Brilmayer
View author publications
You can also search for this author in PubMed Google Scholar
William J. Moon
View author publications
You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Lea Brilmayer .

Editor information

Editors and Affiliations

Toronto, Ontario, Canada
Nadia C.S. Lambek
Center for Philosophy of Law, University of Louvain, Louvain-la-Neuve, Belgium
Priscilla Claeys
San Francisco, California, USA
Adrienna Wong
Yale Law School, New Haven, Connecticut, USA
Lea Brilmayer

Rights and permissions

Reprints and permissions

Copyright information

About this chapter

Cite this chapter

Brilmayer, L., Moon, W. (2014). Regulating Land Grabs: Third Party States, Social Activism and International Law. In: Lambek, N., Claeys, P., Wong, A., Brilmayer, L. (eds) Rethinking Food Systems. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7778-1_6

Download citation

DOI: https://doi.org/10.1007/978-94-007-7778-1_6
Published: 11 January 2014
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-007-7777-4
Online ISBN: 978-94-007-7778-1
eBook Packages: Earth and Environmental ScienceEarth and Environmental Science (R0)

Publish with us

Policies and ethics