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News Story
25 April 2016

When it comes to land deals, can development and human rights be reconciled?

Achieving the ambitious Agenda 2030 requires solutions with multiple benefits across scales. One such solution may be to establish stronger land tenure systems in countries or regions that lack them.

During a meeting at SEI, representatives from SIANI, LARRI and LANDESA , FIAN, Latinamerkagrupperna, Afrikagrupperna and Naturskyddsföreningen gathered to discuss different approaches to land rights and the issue of land grabbing.

Today, as much as a quarter of the world’s population is landless, and many people who have land have only insecure tenure. In sub-Saharan Africa, more than 90% of rural people use land and natural resources under customary and informal tenure; the same goes for 40 million Indonesians and 40 million South Americans.

When land used under these conditions becomes desirable for another purpose – commercial agriculture, mining, development – often the occupants are displaced, with little recourse. This has raised serious concerns about “land-grabbing”, and has led to calls to improve land tenure systems. Businesses and governments are increasingly aware of the urgency of this issue.

Indeed, a global study of 108 countries indicates that stronger property rights are associated with 6-14% income growth per capita.  Yet, as it is now, the issue of land rights in many countries is politically volatile, leading to human rights violations, environmental degradation, limping rural development and sometimes open conflict.

It happens that many of the states with insecure land tenure systems are also low- and mid-level income countries with large amount of the land that is not being used to its full economic potential. Aiming to boost economic growth, they may seek to reallocate large parcels for use in development projects or to attract foreign direct investment (FDI). The problem is that land is rarely completely vacant – and if the people occupying it have only informal tenure, they may be forced out with little or no compensation. And even if businesses try to compensate the land occupants, without adequate legal records, it may be difficult to do so fairly.

Much FDI is happening because the investor countries want to guarantee their own food supplies as well as look for business opportunities, like the Gulf States and China, for example. Other big FDI drivers are biofuels and the need to diversify financial portfolios because of the risky global financial climate.

Obviously, local development is not the primarily goal of the foreign direct investments, but the value for local economy is often stated in project documents. In general, many countries in Africa, Asia and Latin America need investment in agriculture because it is the base of their economy. Such investment has a potential to infuse these economies with capital, create lacking infrastructure and improve agricultural technology.

So, how does one work around the need for investment on one hand and the risk of land grabbing on the other?At the heart of the matter are two different perspectives: human rights and development.

The human rights agenda on land

Land is crucial to the realization of the internationally recognized human rights: to a decent standard of living, food, adequate housing and water, the chance to freely pursue economic, social and cultural development, and the right to privacy and family life.

For indigenous peoples, land is also important as the basis for self-determination: on their land, they can still live by their own values, customs and norms. However, despite the fact that land is closely intertwined with human rights, land tenure itself is not recognized as a human right.

This creates a “normative gap”, providing space for misconduct. Additionally, there is an implementation gap, which partly stems from the normative gap, resulting in the fact that there are no institutions that regulate it and no resources are specially distributed for its implementation.

By no means, the fact that the right to land is now part of the SDG 1 and has a separate target and a defined indicator (see target 1.4)  improves the status of land rights. However, because the SDGs are not legally binding, essentially it only means that the international community recognizes the importance of land rights for poverty reduction, but not more than that.

The development spin

As much as the farmers have the right to self-determination and property, they also have the right to decent leaving standards, and the idea of Foreign Direct Investment has been suggested as means for development of agrarian economies.  As mentioned earlier, FDI has a lot to offer, however, the devil is in the implementation, and it is rather rare that FDI reports a happy end for the local communities.

Moreover, there are many projects in which local people are not among the winners..  Such examples sparked a debate about the real value of FDI and even lead to strict critique of the “Principles for responsible investments in agriculture and food systems”, developed and approved by the CFS FAO. The main point is that the development approach seems to put human rights on the side-lines, prioritizing the bigger good, which in this case is advancement in rural development. Projects on the ground show that large-scale investments made under unclear land rights order often benefit the privileged majority and investors, but not the local communities.

Aiming at preventing such outcomes, the U.N. Special Rapporteur on the right to food declared 11 principles – a minimum requirement that should be met in order to address human rights challenges for the large scale land deals.  The principles require transparent negotiation, consultation with communities, ensuring they are the primarily beneficial, as well as environmentally cautious farming practices. Some proponents of the human rights approach, like FIAN, also would like to draw a difference between large-scale investment, which is often more akin to land grabbing, and smaller scale investment which creates and develops local markets.

There are also human rights advocates who advise to abolish FDI whatsoever, arguing that no matter the status of land rights, deals which involve the land that is used by the local people for their survival, would always create problems.

So, does this mean the FDI has to be stopped until there is a universal right to land in place?

Converting all land that is now in customary tenure systems to formal systems would be hugely expensive and would constitute an enormous power grab away from local chiefs in rural Africa, for example. Community ownership of land is a very good thing in all sorts of ways, but it also carries risks – like you can pay off a chief and then half of his people’s land is taken away. The land that is divided into small parcels with individual titles can be then bought bit by bit for negligible price and then united into a bigger piece for a development project. Another, tricky area is the implementation of the REDD framework, under which governments, aspiring to the international climate goals, might allocate land to conservation denying the locals the access to it.

According to Chris Jochnick, chief executive officer at Landesa, the divide between the proponents of the human rights perspective and those who are more pro-FDI, is counterproductive. The flipside to the contradicting opinions is that many important investment opportunities are stopped and there is no constructive dialogue between different stakeholders; organisations that try to take the middle ground often get caught in the crossfire and are accused of being “traitors to the cause” or “screaming radicals”.

As it is often the case when points diverge in arguments, the major stumbling block is about definitions and interpretations. The main point of contention appears to be more about the source of investment and about what drives development, and less about whether or not one should invest in poor or middle-income countries

Development is never a one-way pathway, but a very context specific one. Trade and investment can be a good thing and it is thus important to work with the private sector, so partners could learn together and improve their practice. The “FDI”-people see that trade and major investments is a great source of revenue that is needed to promote economic growth. The “Human Rights”-people, on the other side of the table, call for land deals with full accountability and transparency, demanding the fulfilment of human rights. In this approach government holds ultimate responsibility to provide basic services to the population, while FDI is meant to provide financial support.

The phrase “free prior and informed consent” is mentioned as a cornerstone in land rights negotiations, it is about the need for a more active inclusion of local people in the process. The more information that is available to everyone involved in the trade, the easier it is to make informed decisions. A continuous dialogue is key to effective resource management.

Essentially human rights and development are both desirable. The point is how it can be done so it also improves the livelihoods of those who live in the area of project implementation.

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