1. Introduction
‘Land-grabbing’, it seems, remains all the rage. Typically understood today as the acquisition or lease of large tracts of land in developing countries by wealthy states and corporate investors, usually for engaging in agribusiness and securing reliable sources of food and biofuel, ‘land-grabbing’ has established itself as a staple in the lexicon of countless advocacy networks, social movements, and international organizations, turning into something of a slogan for those troubled by a variety of distinct but structurally related modes of dispossession and displacement. The interest is justified. In late 2008, amidst the spike in food and oil prices that accompanied the onset of the ‘Great Recession’, GRAIN – a Barcelona-based non-profit dedicated to studying issues of biodiversity and access to food – published a report detailing the rapid growth of land-grabbing as a means of outsourcing production and finding a home for profitable investment.Footnote 1 In a 2016 follow-up, it pointed to recent numbers to demonstrate that the global land-grab continued, though the pace had slowed and some of the most egregious deals had been shelved or modified due to public pressure: 491 large-scale land-grabs had been initiated by foreign investors over the preceding decade, over 30 million hectares (in no less than 78 countries) had been acquired as part of completed land deals, and nearly 13 million hectares had been primed for acquisition in deals that were ultimately discarded.Footnote 2 GRAIN’s researchers acknowledged that many civil society and non-governmental organizations had begun to mobilize against land-grabs, but they felt compelled to draw a harsh conclusion: ‘[W]hile some deals have fallen by the wayside, the global farmland grab is far from over. Rather, it is in many ways deepening, expanding to new frontiers and intensifying conflict around the world.’Footnote 3
A range of concerns have been voiced over the years about the large-scale purchase or leasing of land. Some have pointed to the fact that agricultural practices prioritizing industrial cultivation of single crops threaten to undermine biodiversity and disrupt existing food systems. Others have argued that land-grabbing erodes state sovereignty in the name of outsourced food production or speculative investment in land and water, attenuating the capacity of under-resourced governments to formulate and implement broad-based redistributive policies. Still others have accused ‘land grabbers’ of engaging in a kind of neocolonialism, one that further reduces the heterogeneity of land held and used in common by direct producers in the ‘global South’ to the homogeneity of a commercial monoculture reinforced by the social property relations of export-oriented capitalism. Large-scale land-appropriation is not, of course, new. Nor is it confined to the ‘global South’, having also occurred in Australia, New Zealand, Romania, Russia, Slovakia, Spain, Ukraine, and elsewhere.Footnote 4 Nor, for that matter, are those responsible for contemporary land-grabbing confined to the ‘global North’, however precisely we may define that expression. Relevant actors include China, Egypt, India, Saudi Arabia, and other Gulf states, not to mention the private investors with which they are associated. Less often noticed but no less important, those living and working on the land in question – the ‘local communities’ of standard policy and activist jargon – have frequently felt compelled to participate in and seek benefit from resulting ‘investment opportunities’ rather than attempting to mount a frontal challenge.Footnote 5 Nevertheless, the processes of large-scale land-appropriation engendered by the current wave of land-grabbing, with all that this entails for ‘land reform’ and ‘labour management’, have been far-reaching. In mid-2009, the Economist was led to suggest that we had entered a ‘third wave’ of outsourcing, after those of manufacturing during the 1980s and information technology during the 1990s.Footnote 6 The claim may have been somewhat exaggerated but it is certainly not without basis.
A number of calls have been made in recent years to rethink relations between different forms of socio-economic expulsion and expropriation. One particularly influential example is Saskia Sassen’s Expulsions, which attempts to analyze forced migration, especially the kind that stems from land-grabs, in tandem with the socio-economic inequality spawned by the neoliberal financial capitalism of the past half century.Footnote 7 Interestingly, though, the legal dimensions of land-grabbing remain under-theorized. When the phenomenon is broached explicitly by legal scholars, it is often absorbed into broader discussions of ‘food security’ and ‘food sovereignty’. Less common are efforts to examine the specific modalities of power and authority informing the contracts, concessions, and other instruments that underwrite the seizure and systematic exploitation of large tracts of land. Indeed, with the notable exception of the body of work that Olivier De Schutter produced during his tenure as United Nations Special Rapporteur on the Right to Food,Footnote 8 land grabbing has attracted comparatively limited attention from international legal scholars, though a small and growing cohort of researchers have begun to analyze the way in which international law sanctions, formalizes, and legitimates this new drive to acquire, utilize, and transform land (while also providing certain avenues for countering it).Footnote 9
This article considers land-grabbing from the standpoint of international law. Rather than presenting land-grabbing as a strictly politico-economic phenomenon – so that law, to the extent that it is brought into the picture at all, is confined to a weak, if vaguely ‘progressive’, role – I foreground the constitutive power of legal instruments, focusing upon the way in which they have fostered a new mode of land-appropriation. I argue that any politico-economic analysis of land grabbing must, of necessity, also be a politico-economic analysis of the law of land-grabbing. I argue further that Marx’s account of ‘primitive accumulation’ in Capital – an account I present as both an historical examination of the transition to capitalism and a general theory of ‘extra-economic’ force deployed through state power, including, crucially, the power of law – is helpful for developing an analytical framework for understanding the legal facets of land-grabbing. Political economists, rural sociologists, and social and political theorists have for some time argued for and against the applicability of Marx’s theory of ‘primitive accumulation’ to the contemporary wave of global land-grabbing. However, no international lawyers have grappled with the question of whether a specifically Marxist approach to the phenomenon can or should be developed. I do so here, arguing that contemporary land-grabbing is unintelligible absent a theory of capitalism, and that the processes whereby capitalism transforms land and labour are unintelligible absent a theory of the periodic waves of legally mediated ‘primitive accumulation’ that propel it forward. I demonstrate that international law plays a facilitative role in regard to land-grabbing, and that this role finds powerful, if counter-intuitive, expression in De Schutter’s work during his tenure as special rapporteur. Though critical of many facets of land-grabbing, De Schutter’s influential interventions in the debate about land-grabbing revealed more about international law’s role in facilitating the phenomenon (and the usefulness of certain legal concepts and arguments for softening its edges or papering over its violence) than it did about international law’s opposition to it.
2. Marx’s ‘primitive accumulation’
Mark Neocleous, the political theorist of state and security power, once observed that the recent outpouring of critical international law scholarship, while highly impressive in scope and ambition, has been marked by a certain peculiarity – the near-total absence of Marxism, in any genuinely recognizable sense. As Neocleous observed, despite the growth of interest in the history and theory of international law over the past two decades, only a comparatively small group of legal scholars have sought to examine international law’s complicity with imperialism, colonialism, and neocolonialism from a Marxist perspective.Footnote 10 Fewer still, he noted, have attempted to develop a theory of international law’s historical and conceptual development on the basis of the account of ‘primitive accumulation’ provided in the final chapters of the first volume of Marx’s Capital – or even, for that matter, of the various reconstructions that it has inspired in recent years, the most widely known being David Harvey’s ‘accumulation by dispossession’.Footnote 11 This lacuna, Neocleous argues, is not simply unfortunate. It points, rather, to a systemic blindness, a broader unwillingness to admit that ‘the ways in which the international order and its legal regime were violently constituted through the 16th and 17th centuries can be understood as part and parcel of the process Marx calls “primitive accumulation”’.Footnote 12
Neocleous is justified in pointing to the absence of engagement with ‘primitive accumulation’ and related Marxist models of dispossession in international legal scholarship. In order to see why this is the case, and what precisely such engagement might illuminate about contemporary land grabbing, it is necessary to revisit Marx’s original exposition. Marx developed his theory of ‘primitive accumulation’ – or, more accurately, ‘so-called primitive accumulation’, this being an allusion to Adam Smith – in an effort to explain the violence enacted by capitalism.Footnote 13 In chapters 26 through 33 of the first volume of Capital, the locus classicus of his discussion of ‘primitive accumulation’, Marx is concerned centrally with the way in which capitalism – a specific mode of production driven by the competitive exploitation of human labour-power for the creation, appropriation, and accumulation of surplus value – presupposes exclusion and expropriation through ‘extra-economic’ means. How, he asks himself, does the process of accumulating capital – the subject of the immediately preceding chapters – get off the ground? What is its root, its first cause – the force that is generative of the process that sustains, reproduces, and amplifies the capital-relation, the worker’s separation from ownership of the means of production? Marx’s answer is ‘primitive accumulation’, an expression he derives from Smith’s ‘previously necessary’ form of ‘accumulation of stock’ and invests with newfound significance (and which, it should be noted, is rendered more accurately as ‘original accumulation’, the German original being ursprüngliche Akkumulation).Footnote 14 The capital-relation, and the process of capital accumulation generally, is ultimately grounded in the ‘previous’ forced conversion of independent peasant proprietors, living directly on and off the land, into wage-labourers, henceforth ‘free’ – that is, forced – to sell their labour-power on the market. This conversion – what Marx refers to as ‘[t]he process of forcible expropriation of the people’Footnote 15 – is realized not through the internal dynamics and mechanisms of capitalist exchange relations, for these dynamics and mechanisms are precisely those which ‘primitive accumulation’ makes possible. Instead, it is realized through the direct application of the coercive power of the state, including, again, the coercive power of the law. This, for Marx, is what distinguishes the ‘economic’ force of routine capital accumulation – marked by a ‘silent compulsion’ expressed in patterns of ‘education, tradition and habit’ for which the demands of such accumulation are ‘self-evident natural laws’ – from the ‘extra-economic’ force of ‘primitive accumulation’.Footnote 16 Violence may be omnipresent in capitalism but it is most crass and visible, Marx insists, at its point of origin, written as these are ‘in the annals of mankind in letters of blood and fire’.Footnote 17
Marx unfolds this account of ‘primitive accumulation’ ambitiously. He argues that the transition from a pre-capitalist mode of production premised upon small-scale farming and artisanship under conditions of parcelized sovereignty to a capitalist mode of production driven by the constant creation of (‘absolute’ and ‘relative’) surplus value required the availability of a significant amount of ‘original’ capital. This ‘original’ capital did not emerge through some sort of idealistic Lockean application of human labour to the soil. Rather, Marx maintains, it was generated through the eviction of free, predominantly self-supporting peasants as part of the violent birth of an entirely new mode of production. Large numbers of peasants were forced off the land on which they sustained themselves, channelled toward nascent centres of industry prepared for their exploitation, transformed into a surplus population of ‘free and rightless proletarians’, and often ‘turned in massive quantities into beggars, robbers and vagabonds’ in the process.Footnote 18 According to Marx, this process, which culminates in the famous ‘clearing of estates’,Footnote 19 also had the effect of bolstering the growth of a domestic home market while furthering the liberation of industrial capitalists from the prerogatives of corporate guilds (in the towns) and feudal territorial arrangements (in the countryside).Footnote 20 Hence the importance of the concept of ‘primitive accumulation’, which captures the specificity of this expulsion and expropriation, marking it off from the specifically ‘economic’ coercion with which established processes of capital accumulation are shot through. Social relations in an environment in which the capitalist mode of production has established itself are structured by a set of market constraints that find expression in the ideology of ‘free labour’, ‘contractual freedom’, and ‘individual liberty’. By contrast, social relations in an environment that is only just beginning to undergo integration into the capitalist mode of production are characterized by a significant measure of what Marx terms ‘extra-economic’ coercion – the use of direct, unconcealed violence to compel dispossession and subjugate labour-power.
Marx trains his lens on England and Scotland, maintaining that the process of enclosing and privatizing the commons that took hold during the fifteenth and sixteenth centuries was central to the development of capitalism. One of his most striking examples concerns the way in which successive waves of enclosure throughout the Scottish Highlands by the chiefs or ‘great men’ left many peasants with no choice but to seek employment in Glasgow and other cities, which consequently grew in manufacturing power and also in legal and economic autonomy.Footnote 21 However, he also recognizes that ‘primitive accumulation’ has unfolded through different means in different contexts, including, of course, territories that have been administered under formal or informal colonialism.Footnote 22 Indeed, chapters 31 through 33 of the first volume of Capital are devoted to colonial capitalism, particular attention being paid to the slave trade, the history of chartered companies, the role of public debt and credit systems in inter-imperial competition, and the theory of ‘systematic colonization’ proposed by British imperialist Edward Gibbon Wakefield (and partly implemented through legislative action in South Australia and elsewhere during the early nineteenth century).Footnote 23 Crucially, Marx views the colonial context not as a supplement to his analysis of Britain but as its logically necessary completion. It is in late seventeenth-century England, he claims, that the coercive powers of the state were brought to bear most fully in the service of ‘primitive accumulation’ in the extra-European world, thereby accelerating ‘the process of transformation of the feudal mode of production into the capitalist mode’.Footnote 24 And ‘[i]t is the great merit of E. G. Wakefield to have discovered’, he writes, ‘not something new about the colonies, but, in the colonies, the truth about capitalist relations in the mother country’ – namely that a functional capitalist system presupposes the formation of a sizeable class of wage-labourers divorced from the means of production.Footnote 25
Unsurprisingly, this account of ‘primitive accumulation’ has engendered a variety of interpretations. The debate concerning its analytical merits and historical plausibility ranges widely, and has been a mainstay of Marxist theory for nearly a century and a half. Here I wish to focus upon two points. First, many debates about Marx’s theory of ‘primitive accumulation’ have circled around the question of whether it is intended as an historical account of a phase that reached its completion at a particular point in the past, an analytical framework designed to explain the complex and ongoing process whereby capitalist social relations gradually absorb pre- or non-capitalist social relations, some combination of the two, or something else entirely.Footnote 26 Marx repeatedly locates ‘primitive accumulation’ in the past. He frames ‘primitive accumulation’ partly as an answer to the question ‘where did the capitalists originally spring from?’Footnote 27 Characterizing it as capital’s ‘historical genesis’, and also as the ‘pre-history of capital’, he argues that it ‘plays approximately the same role in political economy as original sin does in theology’, presenting it as ‘the historical process of divorcing the producer from the means of production’.Footnote 28 And while he relates his analysis to ‘[t]he discovery of gold and silver in America, the extirpation, enslavement and entombment in mines of the indigenous population of that continent, the beginnings of the conquest and plunder of India, and the conversion of Africa into a preserve for the commercial hunting of blackskins’, all ‘things which characterize the dawn of the era of capitalist production’ and the ‘chief moments of primitive accumulation’,Footnote 29 he claims – infamously – that ‘[i]n Western Europe, the homeland of political economy, the process of primitive accumulation has more or less been accomplished’.Footnote 30 This has encouraged the view that early modern British experience with enclosures, which Marx expressly positions as the ‘classic form’ of ‘primitive accumulation’,Footnote 31 should also be understood as archetypal in the sense of providing a standard with which all other experiences must be compared, regardless of their obvious and often enormous contextual differences.Footnote 32 Critics have objected to this as a form of Eurocentrism.Footnote 33
Importantly, though, Marx is also given to employing ‘primitive accumulation’ in an analytical rather than historical sense. On this account, the key to ‘primitive accumulation’ is the worker’s separation from the means of production. And since ‘[t]he expropriation of the agricultural producer, of the peasant, from the soil is the basis of the whole process’,Footnote 34 it is conceivable that there is in principle no temporal limit to this process, at least not an easily identifiable one. The most influential variant of this interpretation anchors itself in the work of Rosa Luxemburg, who understood ‘primitive accumulation’ as a theory not simply of the origins of capitalism, but also of the permanent and continuous unfolding of its assimilationist dynamic. On this rendering, ‘primitive accumulation’ is constitutive of capitalism through and through, not merely an explanatory tool useful for decoding its initial emergence. If the colonial context is significant for Marx, it is central for Luxemburg: it is in capitalism’s continued expansion into and transformation of the non-capitalist world that the ongoing need for ‘extra-economic’ violence is made manifest most forcefully. This is because capitalism always requires a constitutive ‘outside’, a region whose labour it may incorporate and whose social relations it may marketize, and this process cannot help but rely upon organized, ‘extra-economic’ violence.Footnote 35 Marx himself made a point of undertaking extensive research into land tenure and communal property practices in Russia and among a variety of extra-European peoples after the publication of the first volume of Capital in 1867. One result of these further investigations was a desire to avoid a teleological interpretation of ‘primitive accumulation’, as expressed in an 1877 letter in which he cautioned that the relevant chapters of Capital, containing a ‘historical sketch of the genesis of capitalism in Western Europe’, should not be read as an attempt to provide an ‘historico-philosophical theory of general development, imposed by fate on all peoples, whatever the historical circumstances in which they are placed’, as though he were in possession of an ‘all-purpose formula’ for the transition to capitalism.Footnote 36 Indeed, Marx observed a few years later, the implication of ‘historical inevitability’ (he himself put the expression in scare quotes) in his claim in Capital that ‘primitive accumulation’ converted the worker’s ‘private property’ in land into ‘capitalist private property’ was ‘expressly limited to the countries of Western Europe’; it was by no means applicable directly to Russia or elsewhere, where pathways of socio-economic development could well differ significantly.Footnote 37
While the tension between these two interpretations of ‘primitive accumulation’ is undeniable, the extent to which both find real and sustained expression in Marx’s text is often overlooked. For Marx ‘primitive accumulation’ is intended both historically and analytically, as a means of explaining how capitalism comes to arise, entering the world ‘dripping from head to toe, from every pore, with blood and dirt’, as well as a means of explaining its ongoing capacity to institute, consolidate, and augment the separation of the labouring classes from the conditions of their labour.Footnote 38 Expansive models of ‘primitive accumulation’ are not necessarily without problems of their own. Harvey is an especially illuminating case here, having applied the notion to a range of disparate phenomena, including but not limited to gentrification and ‘urban renewal’ projects, the corporatization of universities, the privatization of basic resources like water, the patenting and commercial licensing of seeds and genes, and financial crises orchestrated or managed with a view to devaluing existing capital assets and thereby facilitating their predatory appropriation at fire sale prices.Footnote 39 Understandably, this has given rise to charges of conceptual inflation and imprecision.Footnote 40 Nevertheless, it is my contention that ‘primitive accumulation’ is particularly suitable for understanding the legal implications of land-grabbing. Highlighting the violence immanent not only in the emergence of the capitalist mode of production but in its subsequent spatial expansion, quantitative amplification, and modular transformation, the concept of ‘primitive accumulation’ invites us to analyze land-grabbing as an especially powerful manifestation of contemporary capitalism’s ongoing drive to divorce direct producers from their means of subsistence and consolidate land’s status as a fully fungible commodity, to be sold, purchased, and exploited according to technocratic concerns of ‘food security’.Footnote 41 There is no need to privilege the British case so as to ‘derive’ from it all subsequent forms of dispossession and proletarianization through ‘extra-economic’ land-appropriation. Nor is there any requirement that one subscribe to or accept in full Marx’s account of the relevant history, whether in Britain or in the colonies.Footnote 42 What remains valuable in ‘primitive accumulation’ is the recognition that the routine operation of the capitalist mode of production, a system of generating and accumulating surplus value through largely ‘economic’ forms of exploitation, is structurally dependent upon periodic waves of expropriation and displacement that are made possible by strong infusions of legally formalized violence and that forcibly alienate producers from the means of production.Footnote 43 There is much in Marx that supports this view, among others his statement in the Grundrisse that once the ‘original’ separation between producer and means of production ‘is given, the production process can only produce it anew, reproduce it, and reproduce it on an expanded scale’, his suggestion in the third volume of Capital that ‘primitive accumulation’ is capitalist accumulation ‘raised to a higher power’, and his claim in the same volume that the logic of separation that lies at the heart of the capital-relation ‘arises with primitive accumulation … subsequently appearing as a constant process in the accumulation and concentration of capital, before it is finally expressed here in the centralization of capitals already existing in few hands’.Footnote 44 The transformation in social relations effected by ‘primitive accumulation’ is characterized not by the incremental aggregation or enlargement of wealth but by the producer’s alienation from the means of production, a rift that transforms her into a wage-labourer subordinated to the dynamics of competition and surplus-reinvestment.Footnote 45
This leads to a second point. Marx argues forcefully that ‘primitive accumulation’ was enabled by legal no less than extra-legal means. In Britain, argues Marx, the en masse displacement of free peasants that followed the usurpation of arable land held in common and its conversion into pasture land subject to private ownership throughout the course of the fifteenth, sixteenth, and seventeenth centuries expressed itself in episodic, largely unco-ordinated acts of expropriation. These were ‘individual acts of violence’, writes Marx, and they were also acts ‘against which legislation, for a hundred and fifty years, fought in vain’.Footnote 46 Time and again laws were promulgated to forestall or at least minimize the destruction of peasant establishments and the concomitant conversion of (relatively unprofitable) arable to (relatively profitable) pasture land. However, by the eighteenth century, the law itself had become ‘the instrument by which the people’s land is stolen’ – the instrument, that is, through which the ‘clearing’ of the commons was enabled and consolidated, particularly in the form of parliamentary acts adopted for the purpose of lending legal credence to enclosures.Footnote 47 Since the sixteenth century, ‘vagabondage’ had engendered ‘bloody legislation’ designed to discipline those who had been forced from the land and had proven unable to secure stable employment; they were thereby characterized as ‘voluntary criminals’ who chose not to work, and funnelled into the new regime of wage labour.Footnote 48 Worker associations had been outlawed since the fourteenth century, and wages had been subject to strict regulation so as to punish employers who paid above levels stipulated by statute.Footnote 49 The eighteenth century added fuel to this fire with more sweeping and ambitious acts to enclose the commons. For its part, the nineteenth century brought with it the added innovation of identifying ‘the wealth of the nation’ with ‘the poverty of the people’, the standard rationale marshalling the economic and even moral necessity of ‘improving’ land that supposedly lay in a state of ‘waste’.Footnote 50 While labour made certain legal gains during the course of the nineteenth century, such as the incremental contraction of the working day, the partial regulation of child labour, and the legal recognition of trade unions (first in 1824),Footnote 51 nothing stood in the way of the ongoing ‘expropriation of the great mass of the people from the soil, from the means of subsistence and from the instruments of labour’.Footnote 52 Marx insists upon the centrality of law, and the state power it presupposes and crystallizes, to capitalism, at its point of inception as well as during its ongoing expansion. Under conditions of settled capitalism, the ‘silent compulsion of economic relations’ may be powerful enough to render ‘[d]irect extra-economic force’ necessary ‘only in exceptional cases’.Footnote 53 But this is the case only because such economic relations are structured and legitimated through law and ‘the power of the state’ – the same force that makes the ‘historical genesis of capitalist production’ possible in the first place.Footnote 54
3. International laws of land-grabbing
In itself, there is little new in the application of Marx’s theory of ‘primitive accumulation’ to the general topic of land-grabbing. A sizeable and rapidly growing body of scholarship grapples with the question of whether and how it may be so applied.Footnote 55 Given that Marx goes out of his way to situate ‘primitive accumulation’ at the heart of the process whereby ‘the dwarf-like property of the many’ becomes ‘the giant property of the few’,Footnote 56 it should come as no surprise that the concept has figured prominently in recent efforts to conceptualize the dispossession and exploitation of peasants and indigenous peoples. What is new about the approach I propose here is the explicit application of Marx’s theory of ‘primitive accumulation’ – understood as the alienation of the producer from the means of production through juridico-political power – to the international legal dimensions of land-grabbing. While Marx was alive both to the legal dimensions of ‘primitive accumulation’ and to the colonial context in which it operated, he did not, of course, bring these elements together in an analysis of international law. The same can be said for contemporary critics of land-grabbing, who tend to disregard the specifically legal facets of Marx’s original discussion. Thus, in one of the most searching theoretical analyses of land-grabbing currently available, Onur Ulas Ince argues that ‘primitive accumulation’ ought to be understood as ‘a frontier phenomenon that arises at the interface of accumulative and non-accumulative logics of social reproduction and consists in the assimilation or subordinate articulation of the latter to the former through the deployment of extra-economic and extra-legal force’.Footnote 57 Interestingly, Ince conjoins ‘extra-economic’ and ‘extra-legal’ consistently while developing his argument in defence of this proposition,Footnote 58 implicitly removing law from the sphere of state-driven expropriation that distinguishes ‘primitive accumulation’. Similarly, William Clare Roberts has argued powerfully that ‘primitive accumulation is an ongoing necessity internal to capitalism, but always anterior to the specific operations of capital’: since the process of generating and accumulating surplus value cannot itself create the systemic conditions for generalized capitalist accumulation, this task must be performed by the state, ‘which undertakes capital’s dirty work because it has become dependent upon capital accumulation for its own existence’.Footnote 59 Like Ince, however, Roberts makes no mention of law, electing instead to couch ‘primitive accumulation’ as ‘plunder, fraud and theft’ – all terms that suggest outright illegality.Footnote 60 It is this neglect of the legal aspects of ‘primitive accumulation’, particularly on the international plane, that must be rectified.
The international law of land-grabbing – the drive to formalize and legitimate large-scale land-appropriation through law – engages a range of different ideas and entitlements. In addition to the right to food, some of the more ‘progressive’ of these ideas and entitlements include the right to development, the principle of permanent sovereignty over natural resources, the concept of the ‘common heritage of mankind’, the land rights of indigenous peoples under international law, and various legal formulations of sustainable development and collective self-determination (understood in an ‘economic’ no less than a ‘political’ register). Yet undergirding much of the legal architecture of land-grabbing are the more humdrum elements of the law: property rights that are protected, contractual instruments that are enforced, and trade and investment rules that constrain the policymaking authority of capital-importing states while encouraging liberalization, facilitating the operation of food commodity markets, and reducing barriers of entry to real estate markets in the global South. Legal rules and principles are not merely applied as part of an after-the-fact response to land-grab. They are also – and more significantly – employed in a facilitative capacity, making land-grabs possible in the first place. This is particularly visible in the case of the contracts, concessions, and other agreements providing much of the legal framework for the purchase or lease of large swathes of land. Although many instruments directly governing large land deals are marked by vague or incomplete provisions, concealed from public scrutiny, and drafted with little or no consultation with those whom they affect most directly, their legality is accepted by investors and governments alike, they are prepared against the background of a corpus of structurally similar instruments, and use can be made of courts and in certain cases investor-state arbitration, or the law of investment protection more generally, to uphold andenforce them.Footnote 61
Consider, for instance, a 2010 land lease agreement between the Ethiopian Ministry of Agriculture and Rural Development and Saudi Star Agricultural Development, a company incorporated under Ethiopian law and possessed of a registered office in Addis Ababa but owned by Ethiopian-born Saudi multi-billionaire Mohammed Hussein al Amoudi and operating as an offshoot of the MIDROC group, his larger, tricontinental business empire.Footnote 62 Pursuant to the terms of the agreement, designed to serve Saudi Arabia’s ‘food security program’,Footnote 63 Saudi Star was granted a half-century lease of 10,000 hectares of rural land in Ethiopia’s western Gambella region for the purpose of cultivating and processing rice (and also for the production of biofuels). Interestingly, Ethiopian law was to govern the agreement, and recourse was to be had to the Ethiopian federal court in the case of a dispute.Footnote 64 However, Ethiopian authorities were obligated to ‘provide special investment privileges such as exemptions from taxation and import duties of capital goods and repatriation of capital and profits’.Footnote 65 Further, in addition to being required to hand over vacant possession of the land free of all legal and other impediments to its ‘clearing’, they were required to ensure that Saudi Star would:
enjoy peaceful and trouble free possession of the premises and … be provided adequate security, free of cost, for carrying out its entire activities in the said premises, against any riot, disturbance or any other turbulent time other than force majeure.Footnote 66
In the years since, al Amoudi’s Saudi Star has developed the farm as part of the Ethiopian government’s broader push to conclude large-scale land deals in order to increase agricultural exports. Roughly 4,000 hectares have been added to the original 10,000, and the land’s transformation into a fully irrigated commercial farm has been made possible through forced relocation of pastoralists and subsistence farmers, a process accompanied by sporadic outbreaks of violence despite significant numbers of Ethiopian soldiers being on hand.Footnote 67 That all this has been achieved with a contract – one which was drafted without public consultation, which resulted in significant dispossession and displacement, and which continues to involve the wholesale material transformation of the land – sheds light upon the degree to which law is constitutive of land-grabbing.
Or take, as another example, a 2009 concession agreement between Liberia and Sime Darby Plantation (Liberia), a company incorporated under Liberian law as a subsidiary of Sime Darby, a mammoth Malaysian conglomerate known chiefly as the world’s largest oil palm plantation company.Footnote 68 Kumpulan Guthrie Berhad, one of the companies out of which Sime Darby grew, had been active in Liberia for decades prior to its second civil war, and Sime Darby was keen to maintain its presence in the resource-rich and investment-dependent country.Footnote 69 The resulting agreement formalized a 63-year concession of 220,000 hectares of land for the cultivation of palm oil and rubber trees and the production of related goods, mainly for export purposes. Sime Darby was accorded the power to establish and maintain its own security services on the conceded land,Footnote 70 and it was also afforded the right to ‘request that certain settlements be relocated’ if ‘such existing settlement and its inhabitants would impede Investor’s development of the Concession Area and would interfere with Investor Activities’.Footnote 71 In the event of a serious dispute, the parties were required to submit themselves to binding arbitration in accordance with the rules of the International Centre for Settlement of Investment Disputes, this being the ‘exclusive remedy’.Footnote 72 In the years since 2009, Sime Darby has proceeded with its development plans.Footnote 73 But it has had to do so slowly and haltingly, given staunch opposition from villagers incensed that they were not consulted, that their lands were taken from them, and that the few jobs that have been created pay too little (when they actually pay at all). Resistance groups have formed, riots have broken out, and incidents of arson have been reported.Footnote 74
In a sense, international law’s constitutive role in land-grabbing follows to some degree from the very concept of sovereignty. During the height of the post-Second World War wave of decolonization, a great many socialist and non-aligned jurists and policymakers sought to reconceptualize sovereignty in explicitly ‘economic’ terms, with the notion of permanent sovereignty over natural resources, already boasting roots in customary international law, gaining significant traction as a result.Footnote 75 While this and related doctrines lend weight to arguments against contemporary forms of land-grabbing, particularly when packaged in the language of ‘food sovereignty’,Footnote 76 it is also the case that sovereignty has conventionally been understood to afford states sufficient authority to conclude agreements with foreign investors and other states with respect to the sale or lease of territory.Footnote 77 After all, Saudi Star’s move into Gambella was actively encouraged by the Ethiopian government, which understood it to be part and parcel of its (sovereign) decision to make land available in large quantities to foreign investors. The same may be said of Liberia’s decision to continue its long-standing involvement with Sime Darby. International law does not merely sift through or take stock of the legal implications of land-grabs, bringing this or that norm, doctrine, or instrument to bear upon a given situation with a view to addressing a particular injustice. More significantly, international law formalizes and provides legitimacy for such grabs. Crucially, it may do so even when international legal scholars happen to be critical of this or that land-grabbing technique.
De Schutter’s work provides a particularly revealing illustration of the complex and constitutive role that international law plays in land-grabbing. Special Rapporteur on the Right to Food from mid-2008 to mid-2014, during which time he conducted more than a dozen country visits, De Schutter sought to foster a ‘developmental’ approach to the purchase or lease of land on a large scale. Land-grabbing – and the ideological and institutional structures of international law that make it possible – is a complex, multifaceted, and internally fractured phenomenon, one that cannot be reduced to a single interpretation or captured with a single exemplary model. Yet De Schutter’s interventions are especially illustrative of broader trends in ‘progressive’ legal responses to large-scale land-grabbing. Entrusted with his mandate by the UN Human Rights Council and dependent upon UN member states for much of his data, not to mention his ability to undertake information-gathering visits, De Schutter’s capacity to articulate a radical critique of land-grabbing – one that would, say, analyze the phenomenon as a manifestation of neocolonial capitalism and clearly denounce the states and corporations that benefit from it – was limited.Footnote 78 Yet it is precisely for this reason, precisely because De Schutter’s options were few so long as he wished to keep his position, retain the trust of fellow jurists, and wield a modicum of influence over UN member states, that his preponderantly accommodationist views on land-grabbing are as revealing and noteworthy as they are. For they reflect the similarly cautious appraisals of many other international lawyers who are concerned with land-grabbing. Like De Schutter, such lawyers tend to level a variety of important and wide-ranging criticisms against certain aspects of the phenomenon, often on the basis of international human rights law. But they neither repudiate the phenomenon directly and unequivocally nor seek to ground it firmly in a cogent and genuinely compelling theory of capitalism.Footnote 79
De Schutter’s most widely read article during his tenure as a rapporteur sought to demonstrate that the large-scale appropriation of land by states and agrifood companies demanded not simply increased commitment to ‘transparency’ and ‘accountability’, but the recognition of non-Eurocentric modes of tenure that would provide peasants and other land users with enhanced legal protection. Ultimately, De Schutter contended, the agreements that formalize investment by transnational corporations and food-importing, capital-exporting states raise fundamental questions of agricultural development:
if the current challenge of large-scale land acquisitions leads to the globalization of Western-style property rights, the ultimate result will be a more capitalized form of agriculture and more land concentration, when what we need instead is to democratize access to land and to support reforms that will benefit small-scale farmers and thus favor broad-based rural development.Footnote 80
De Schutter’s principal target here was the kind of individual titling popularized by Hernando de Soto.Footnote 81 Rejecting the idea that the basic aim of security of tenure is to facilitate market integration, so that land may be alienated or mortgaged as an economic ‘asset’ and thereby drive the accumulation of capital,Footnote 82 De Schutter levelled a number of charges against titling schemes. Among other things, he argued that it often strengthens those who are already privileged in the relevant community, particularly men and members of dominant ethno-linguistic groupsFootnote 83; that it works against those of limited means when it requires payment of a fee; that it tends to lead to the concentration of land in the hands of wealthy landowners; and that it often assumes that legally formalized property will be used as collateral to access credit, an assumption belied by the understandable unwillingness of many peasants, artisans, and others to enter into mortgage agreements.Footnote 84 By contrast, he pointed out, most forms of registering customary use of communal land and resources – a practice that can also promote long-term investment and access to credit – afford protection from eviction without individuating the rights in question.Footnote 85 Of particular interest to De Schutter was the fact that this approach has garnered support through association with the international law of self-determination as well as the right to property, understood in collective rather than exclusively individual terms and enshrined in treaties like the International Convention on the Elimination of All Forms of Racial Discrimination.Footnote 86 While careful not to idealize customary use rights, not least since they too may exclude or subordinate women and those designated as members of minority groups, he clearly positioned them as favourable to ‘Western’ conceptions of individual property.Footnote 87
De Schutter’s argument is curious – and illuminatingly so. Unlike de Soto and others, he expressly distances himself from ‘Western capitalist legal systems’ and maintains a somewhat critical stance with respect to the concept of enclosure, which he defines (via his critique of Eurocentrism) as ‘the privatization of the commons that results from the generalization of a Western notion of individual property rights over land’.Footnote 88 He does so mainly in order to reframe the debate about land-grabbing around questions of sustainable rural development and systemic poverty-reduction. However, the argument he advances cannot justifiably be characterized as anti-capitalist, as it ultimately offers little aside from encouragement to consider ‘more transparent and participatory processes of negotiation’ and entertain ‘other business models that could support an increase in the productivity of farmers and improve their access to markets’.Footnote 89 What one is thereby afforded is not so much direct confrontation with the legal and institutional mechanisms of contemporary land-grabbing as a set of palliative measures designed to socialize some of its less ‘humane’ features, notably with the assistance of human rights, and reframe it in broadly ‘developmental’ terms. De Schutter underestimates the degree to which capitalism’s day-to-day operation is rooted in and dependent upon legally formalized dispossession and displacement. Rather than advancing a frontal and comprehensive critique of the accumulative logic that sustains commercial agro-investment, he chooses to underscore the need for greater regulatory oversight, enhanced respect for human rights, formal recognition of customary user rights, and renewed commitment to sustainable agricultural development. As it turns out, this stance also finds expression in the reports that De Schutter submitted to the Human Rights Council and General Assembly. In the final report he submitted to the Human Rights Council in January 2014, for instance, he anchors his multi-pronged approach to democratic and decentralized food systems – an approach that has strong implications for national policymaking and the broader environment of transnational ‘governance’ – in a concerted push to ensure security of tenure through anti-eviction legislation, customary user rights, enhanced regulations concerning expropriation and speculation, and, more generally, new models of socio-economic development.Footnote 90 In an earlier report, he had already explained that increased recognition of the right to food – enshrined in a large number of human rights instrumentsFootnote 91 – constituted a central pillar in this strategy, calling for stronger institutional support for its implementation from all branches of government, as well as national human rights institutions, civil society organizations, and social movements.Footnote 92 In stark contrast to those who would argue that this right, like human rights generally, offers little aside from a bald assurance to the effect that a certain ‘basic nutritional floor’ or ‘subsistence minimum’ will be respected (without offering means of rectifying the massive inequalities that exist in most states in regard to access to food),Footnote 93 he views it as fundamental to the regulation of large-scale land deals.Footnote 94
Crucially, De Schutter distinguishes his position from the one articulated in the (voluntary and legally non-binding) 2010 Principles for Responsible Agricultural Investment that Respects Rights, Livelihoods, and Resources. A joint product of the World Bank, the UN Food and Agriculture Organization, the UN International Fund for Agricultural Development, and the UN Conference on Trade and Development, the principles encourage investors to respect existing land rights; ensure ‘food security’; commit to ‘transparency, good governance, and a proper enabling environment’; consult with and provide avenues for participation for affected groups; display ‘responsibility’ by adhering to the ‘rule of law’ and employing industry ‘best practices’ that prioritize ‘economic viability’; attend to broader social and distributional questions; and recognize the value of environmental sustainability.Footnote 95 Broadly related, if somewhat more visibly ‘progressive’, is the Committee on World Food Security’s (similarly voluntary and non-binding) 2014 Principles for Responsible Investment in Agriculture and Food Systems, which underscore the importance of ‘food security’, gender equality, youth empowerment, security of tenure, cultural heritage and ‘traditional’ knowledge, safe and healthy agriculture and food systems, assessing ‘impacts’ and promoting ‘accountability’, conserving and managing natural resources, ‘transparent’ and participatory ‘governance’ mechanisms, and inclusive and sustainable forms of economic development and poverty-reduction.Footnote 96 In some respects, legally toothless codes of conduct of this sort, of which there are several others,Footnote 97 echo regional documents such as the African Union’s Declaration on Land Issues and Challenges in Africa, which deploys vague language about providing ‘equitable access to land and related resources’ and cultivating ‘adequate human, financial, technical capacities to support land policy development and implementation’.Footnote 98
De Schutter notes that the 2010 principles – initially requested by the Group of Eight and subsequently supported by a larger group of states and international organizations, as well as a private bank and a multinational agribusiness concernFootnote 99 – have been criticized by peasant groups and civil society organizations for extending ‘soft law’ legitimacy to questionable deals.Footnote 100 He also stresses, with some justification, that he lays greater stress upon questions of agricultural development.Footnote 101 Yet, when all is said and done, he does not depart substantively from the principles’ central and overriding commitment to fostering investment, so long, of course, as it is undertaken with the requisite degree of contractual clarity, regulatory oversight, adherence to the ‘rule of law’, dedication to ‘food security’ and environmental sustainability, and willingness to consult with and integrate the views of those affected. He may argue that the principles ‘ignore human rights’,Footnote 102 or even that they furnish ‘policymakers with a checklist of how to destroy the global peasantry responsibly’.Footnote 103 He shies away, however, from repudiating the drive to accumulate capital that underlies appropriation of land and land resources. And his own list of ‘minimum human rights principles applicable to large-scale land acquisitions or leases’ encourages ‘host States and investors [to] establish and promote farming systems that are sufficiently labour-intensive to contribute to employment creation’ while making room for forced evictions provided that they conform to relevant domestic laws, are ‘justified as necessary for the general welfare’, and accompanied by resettlement and satisfactory monetary compensation.Footnote 104 The result is a preponderantly moralistic analysis of the global race for farmland, one that is incontrovertibly distinguished by considerable concern for those affected by the push to ‘improve’ ostensibly ‘unproductive’ land but that does not yield a sustained critique of the politico-economic system (and, crucially, the international legal system) that undergirds it. If the World Bank has sought to win support for the 2010 principles on the grounds that ‘[r]esponsible investors interested in the long-term viability of their investments realize that adherence to a set of basic principles is in their best interest’,Footnote 105 De Schutter has hesitated before calls to impose a moratorium on large-scale land deals and proven reluctant to endow affected peasants and indigenous communities with robust veto rights over the agreements that formalize them.Footnote 106 His approach may well be ‘developmental’, but that does not make it any less firmly anchored in capitalism. Nearly a decade ago, at the outset of the current round of ‘standards’, ‘guidelines’, and ‘codes of conduct’ on large land deals, Saturnino Borras and Jennifer Franco argued that such efforts accepted the basic co-ordinates of the ‘TNC-controlled global system of food-feed-fuel production, distribution, and consumption’, reframing their social and environmental consequences as ‘side effects of an essentially beneficial cure’ rather than ‘direct impacts that are so severe and unjust that they call into question the very validity of the cure’.Footnote 107 It is difficult to avoid the conclusion that De Schutter’s analysis is vulnerable to much the same criticism.
Ultimately, the approach adopted by De Schutter during the course of his work for the United Nations sheds light upon the degree to which international legal frameworks and arguments enable and legitimate land-grabbing. Far from functioning merely as a means of responding to violations of one or another set of human rights, international law provides much of the normative and institutional architecture for land deals: sovereign states exercise their power to conclude contracts, investment treaties, and other bilateral instruments with corporations or other states, and these instruments are capable of being upheld and enforced by courts and arbitrators after entering into effect and reconfiguring the legal structures that govern social relations within the relevant territory. To his credit, De Schutter is critical of many facets of the international law of land grabbing. But he does not repudiate it outright. Doing so would require acknowledging that the legally formalized acquisition or lease of land wrenches direct producers from the means of production, maintains and amplifies this rift over time, and transforms them into wage-labourers subordinated to the dynamics of competition and surplus-reinvestment. In short, it would require that De Schutter recognize the not-so-‘silent’ compulsion of ‘primitive accumulation’ as foundational to land-grabbing.
4. Conclusion
In a groundbreaking study of the gendered dimensions of ‘primitive accumulation’, dimensions that Marx fails to integrate into his analysis of the phenomenon in Capital, Silvia Federici argues that a:
return of the most violent aspects of primitive accumulation has accompanied every phase of capitalist globalization, including the present one, demonstrating that the continuous expulsion of farmers from the land, war and plunder on a world scale, and the degradation of women are necessary conditions for the existence of capitalism in all times.Footnote 108
The global land-grab that continues today showcases the ongoing, continuous nature of ‘primitive accumulation’, its inherence in and centrality to the cycles of capital accumulation Marx associated with specifically ‘economic’ dynamics. It also showcases the legal dimensions of this process of transforming land and labour. Undeniable though it is that international law offers a variety of means to counter the far-reaching economic and political forces that drive land-grabbing, many of its constituent structures entrench the uneven distributions of wealth, power, and resources that permit states and corporations to engage in this new scramble. One cannot understand contemporary land-grabbing without understanding capitalism, and one cannot understand the way in which capitalism effects sweeping transformations of both land and labour-power without understanding the waves of legally mediated ‘primitive accumulation’ that drive it. The process of ‘incorporat[ing] the soil into capital’ is to a significant degree a legal process.Footnote 109
