The Green Rush: The Global Race for Farmland and the Rights of Land Users by Olivier De Schutter

[ Olivier De Schutter, U.N. Special Rapporteur on the right to food and Samuel Rubin Visiting Professor of Law at Columbia Law School, Fall 2011-Spring 2012, describes his recently published article, The Green Rush: The Global Race for Farmland and the Rights of Land Users. This article is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

We have been witnessing since 2008 a global enclosure movement in which large areas of arable land change hands through deals often negotiated between host governments and foreign investors with little or no participation from the local communities who depend on access to those lands for their livelihoods. This development results from the increased volatility of prices of agricultural commodities on international markets and the merger between the energy and food commodities markets, which in turn explains the sudden surge of interest in the acquisition or lease of farmland in developing countries. Non-governmental organisations have denounced this phenomenon as “land-grabbing”, because of the risks involved for the communities who currently depend on land for their livelihoods, and who are not adequately protected from evictions and may be priced out of this new market for land rights.

Most commentators recognize that these transactions should be more closely scrutinized, particularly since these land deals primarily take place in relatively weakly governed countries, where corruption is frequent. However, some also see opportunities in this development. They see the arrival of investors leasing or buying land as resulting in more investment in agriculture and thus productivity gains ; or they consider that the development of a market for land rights that could benefit current land users, provided their property rights are recognized through titling schemes. This Article questions these views. Based on an analysis of the relationship to property rights of different categories of land users in the rural areas in developing countries, it argues that the poorest farmers will be priced out from these emerging markets for land rights, and that the interests of those depending on the commons will be ignored. The Article suggests that there are other ways to protect security of tenure: anti-eviction laws, tenancy statutes, and policies aimed at ensuring more equitable access to land. Although measures such as these require a disaggregation of property rights and an abandonment of the Western understanding of property as necessarily implying transferability, they may offer more promising solutions to the rural poor. It is by exploring these alternative arrangements by which land users can be protected that we can avoid situations in which, in the absence of adequate support, small-scale farmers will lose their land after having mortgaged it or as a result of distress sales. And it is through such arrangements that the rights of land users that depend on communal lands for their livelihoods—including herders, fishers, and forest-dwellers—can be better taken into account.

The Article proceeds in five steps. Part I discusses the background relationship between states and markets in agriculture. It reviews the historical record in order to identify the reasons why agriculture has been so much neglected in the past ; why investments are now seen as crucial for the relauncing of this sector, particularly in Sub-Saharan Africa ; and why both private and public investors are now scrambling to acquire farmland. Part II identifies other drivers of the process of large-scale acquisitions of land and summarizes the existing commercial pressures on farmland, describing the terms of the current competition between various uses of land.

Parts III and IV then provide an assessment of the dynamics created by this “green rush.” Part III examines the threat the current race for farmland represents for members of local communities, whose livelihoods depend on their access to land and water. It considers the lack of security of tenure of small farmers and asks whether individual titling schemes are the most appropriate way to address this. It then turns to the situation of indigenous peoples, whose land rights have been recognized explicitly under international law, and to the situation of pastoralists and fishers, who depend on their access to commons for their subsistence. The section concludes with a discussion of the dangers of importing a Western concept of property rights to developing regions where customary forms of tenure are accorded a high degree of legitimacy, and where communal rights play an important role as safety nets for many rural poor.

Part IV describes the choices that the governments of target countries are facing. The “transition scenario” sees the development of large-scale plantations by the arrival of foreign investors as an opportunity to accelerate the industrialization of farming and the exit from agriculture of small farmers, who are often considered by mainstream development economists as unable to move beyond subsistence agriculture into commercial farming. The “coexistence scenario” sees large-scale agro-industrial farming and small-scale farming as complementary. The “reform scenario” prioritizes small-scale farming and proposes that foreign investment be channelled towards making that type of farming more viable and increasing its levels of productivity. While not denying that the “coexistence scenario” might work in certain cases, this Article advocates in favor of the “reform scenario,” noting the benefits that could result from expanding support to small-scale farmers, in particular by strengthening their access to land and water.

Part V concludes. It proposes to broaden the discussion beyond the current focus on how local communities should be consulted and their rights respected. It argues that just as there is far more to security of tenure than property rights as understood in the Western legal tradition, there is far more to investment in agriculture than large-scale plantations; and just as the concept of property needs to be disaggregated into its various components to define the status of tenants and the users of the commons, investors and host governments need to explore with the local communities the full range of business models available to link producers to buyers and consumers.