Land Grabbing and the New Economic Order: Revenge of the CERDS

by Kristen Boon

The phenomenon of land grabbing involves powerful transnational economic actors, including corporations, national governments, sovereign wealth funds, and private equity funds, that have searched for empty lands in distant countries that can serve as sites for fuel and food production in the event of future price spikes.

Typically, the foreign investors enter long-term leases with national governments for 25 or 50 years on a renewable basis.   However, land rights are a thorny problem the center of the system.  As Ruth Hall, a South African expert on Land Rights, argues there is a conflict between the status of the (usually unregistered) rights of customary landholders and the authority of states to transact lands to which customary claims are made. Indeed, there is growing evidence that many of the lands allocated to the long-term leases are already occupied and used by small-scale farmers.

One of the obstacles that has arisen in confronting land grabbing is the lack of law in the area.   Earlier this year, FAO released new guidelines on land grabbing that are starting to fill the void. The guidelines cover land, forestry and fisheries (not water and other natural resources like minerals). They also offer principles on responsible tenure governance and the legal allocation of tenure rights. In 2010, the World Bank and partners have promulgated a set of Seven Responsible Agricultural Investment Principles for investors, which focused on corporate social responsibility for investors. In response, the UN Special Rapporteur on the Right to Food produced a set of Ten Minimum Principles on the Right to Food.

All of these guidelines, however, are voluntary.  At present, there isn’t much international law has to say about the problem. This gap got me thinking about the relevance of the Charter of Economic Rights and Duties of States (CERDS) which is the legal component of the New International Economic Order (NIEO) Declaration adopted by the UN General Assembly in Resolution 3281 in 1974. Both CERDS and NIEO sought to establish a new system of rights and duties that would redress economic inequalities between developing and developed states.  In essence, its goal was the creation of a just and equitable system that promoted the economic security and independence of developing countries. CERDS was adopted in the wake of the OPEC crisis of 1973, and while 120 states voted in its favor it garnered strong objections from many developed states at the outset.

Although the general consensus has been that CERDs and NIEO have passed into the annals of history, there are some parallels with the attempts to develop rules on land grabbing.  Indeed, would these new instruments be coming to the fore if it hadn’t been for the precedential value of CERDS?  Land grabbing has a north/south dimension, which is reminiscent of some of the colonial era land grabs. What is new is the south/south dynamic, however, given the involvement of countries like Brazil, Qatar, China, India and South Africa. This World Bank Report gives an in depth assessment of the issue.

A major focus of CERDS was sovereignty over natural resources.  Art. 2, the most controversial article, states that every state has full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities. This article also contained a clause that would have permitted compensation after nationalization or expropriation to be determined by the domestic law of the nationalizing State. It is uncontroversial that today, this nationalistic approach to compensation has been overtaken by more exacting standards determined by BITS and other rules of Customary International Law.

In her lucid new book The Right to Development and International Economic Law, Isabella Bunn argues that “elements of  the NIEO survive in the intention and interpretation of the UN Declaration on the Right to Development.”  It is well documented that Article 14 on the Liberalization of Trade was influential during the negotiations for the World Trade Organization.  Indeed, equitable development, technology transfers and the relevance of human rights to economic development have all emanated from NIEO.

Want to know more? I understand that Fred Pearce’s book the Land Grabbers provides a very readable introduction. It’s on my Christmas list.

http://opiniojuris.org/2012/12/03/land-grabbing-and-the-new-economic-order-revenge-of-the-cerds/

3 Responses

  1. Hi Kristen, thanks for a very concise and useful summary of some of the debates around the great land grab phenomenon. I think one of the things that makes it tricky is that its not just a north-south or south-south interstate problem, but also an intra-state problem involving governments that are undemocratic or not fully representative of their populations (particularly marginalized rural smallholders belonging to ethnic minorities), or both.

    In this sense, such governments are actually abusing their now fairly uncontroversial right to economic self-determination by exercising it exclusively on behalf of a narrow elite and often to the detriment of large rural communities that are both economically and culturally dependent on the land that is being bargained away, literally, from under their feet.

    Indeed, while the antecedents to the land grab lie with colonial laws declaring land not held in formal title to belong to the crown, these were then carried over – post-liberation – by post-colonial elites who rarely saw much point in sharing the spoils with marginalized groups that may not have formed part of their ethnic or tribal constituency:

    http://terra0nullius.wordpress.com/2012/01/26/someday-this-will-not-be-yours-the-predatory-state-eyes-public-land/

    This is why the FAO seems to have developed a very sound approach, in that they have pursued guidelines separately governing the supply side (developing countries with land ostensibly available for large-scale agro-investors) and the demand side (potential investors, whether from the Global north or south):

    http://terra0nullius.wordpress.com/2012/05/13/fao-global-guidelines-on-tenure-of-land-forests-and-fisheries-adopted/

    Finally, this domestic dynamic in countries affected by the global land grab may also be shaping an emerging body of law that is in fact directly relevant. As reflected in the UN Declaration on the Rights of Indigenous Peoples, there is an increasing level of consensus around the idea that former colonies that benefitted from the ‘external’ exercise of self-determination (in the sense of becoming independent states) can no longer deny the ‘internal’ exercise of this right to minority ‘peoples’ existing on their territories.

    Any serious application of this principle is bound to involve recognition of the rights of indigenous peoples to their lands. Here, the Inter-American Court of Human Rights and (more recently) the African Commission on Human and People’s Rights have played a leading role in finding collective rights to indigenous title that are violated when states fail to recognize such a state of affairs:

    http://terra0nullius.wordpress.com/2010/02/17/the-african-commission-endorois-case-toward-a-global-doctrine-of-customary-tenure/

    However, this this principle is still emerging and tends to be notionally affirmed by many states that continue to honor it in the breach. So Chris Huggins’ posing of a basic dilemma on my blog two years ago – whether to respond with the threat of litigation or the inducement of CSR – remains little less relevant today: http://wp.me/pNZgJ-8q

     

  2. Rhodri – thanks for these comments, flagging the intersection with indigenous rights in particular, and for the links to you blog which provide a lot of very pertinent additional information.

  3. Hi Kristen, thanks for your response. For what its worth, given the nature and scale of land-grabbing in some instances, i’m also beginning to argue that it needs to be looked at through a forced migration frame:

    http://terra0nullius.wordpress.com/2012/12/05/preventing-displacement-by-recognizing-the-land-rights-of-indigenous-peoples-and-rural-communities/

    By the way, I do believe we know each other from 3L at NYU… 

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