1. INTRODUCTION
The term ‘land grabbing’ has become widely used to describe a trend that has triggered much international debate. It is described by Olivier De Schutter, the former United Nations (UN) Special Rapporteur on the Right to Food, as:
[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.Footnote 1
Accurate information about large-scale land acquisitions is often hard to access because of the presence of ‘high levels of secrecy around such deals’,Footnote 2 but it is estimated that a very large proportion of these deals relate to agricultural land in Africa.Footnote 3 Some commentators see investment in land in developing countries as a positive trend and argue that investment in agriculture in African countries, in particular, will lead to improvements in food production, which will reduce poverty and contribute to economic growth.Footnote 4 Others have expressed concern about the negative impact of such developments on land rights, indigenous communities and the environment.Footnote 5
The aim of this article is to explore how the human rights and sustainable development frameworks can be integrated to address problems at the intersection of human rights, the environment and development in the context of land grabbing. We begin the analysis, in Section 2, with an overview of land grabbing, exploring in particular the advantages and disadvantages of land investments for host countries, using Ethiopia as a case study.
Section 3 focuses more specifically on the impact of land grabbing on communities affected by such land acquisitions. What emerges clearly from this discussion is the extent of divergence between the demands of economic development, environmental protection and upholding human rights. Arguments in favour of large-scale land investment, which emphasize economic development, often subordinate environmental concerns and human rights to financial gains, the effects of which often include depletion of natural resources, environmental destruction, human rights abuses and poverty for local communities. Conversely, environmental conservation approaches often conflict with economic development and human rights concerns. An environmental conservation approach may, for example, dictate that access to particular areas such as wetlands or forests, or particular natural resources, such as wild animals, on which local communities depend for their livelihoods, should be restricted in order to preserve the environment. Human rights approaches, in turn, often ignore environmental and economic concerns. Legal frameworks have been created and developed in international law for human rights, environmental protection and economic development, but these frameworks tend to operate in separate spheres. As Cordonier Segger and Khalfan argue, ‘a global tapestry of laws is being crafted – without weaving together the strands’.Footnote 6 The rise of sustainable development as a policy framework is an attempt to weave together the strands;Footnote 7 the language of sustainable development has become dominant in international debates about development and the environment.Footnote 8 However, critics of sustainable development argue that it has not been successful in balancing economic, environmental and social justice concerns. The argument presented here is that the principles of sustainable development are reinforced and complemented by international human rights law and that a combined sustainable development and human rights framework has the potential to more effectively balance economic development, social justice and environmental protection in the context of land grabbing.
Section 4 reviews the core principles of sustainable development relevant to land grabbing and considers the extent to which those principles are reinforced by and overlap with international human rights law (IHRL). Section 5 critically assesses the extent to which sustainable development and IHRL have been successful in balancing economic, social and environmental concerns, considers the advantages of a combined sustainable development framework, and explores some suggestions for the implementation of an integrated framework.
2. Land Grabbing: An Overview
When you take someone’s land, you take away the means to an entire family’s livelihood, wellbeing and future.Footnote 9
The potential for conflict between economic development, environmental protection and human rights is illustrated in the context of land grabbing. Foreign investment in land is not a new phenomenon, but the interest in agricultural land has recently seen a significant increase, in particular following the spike in food prices in 2007–08 and subsequent ongoing price volatility. The global food crisis of 2007–08 was driven by interacting factors, including:
∙ rising oil prices, which led to an increase in agricultural costs;
∙ trade liberalization in many developing countries, which resulted in lower subsidies, forcing many small-scale farmers off the land;
∙ loss of farmland to urbanization and the use of land for non-food agriculture, such as horticultural products and biofuel; and
∙ increased speculation in agricultural products by banks, hedge funds and sovereign wealth funds.Footnote 10
These developments not only aggravated food insecurity in vulnerable states but also raised food security fears in more developed countries.Footnote 11 De Schutter suggests that ‘the global food crisis … convinced many governments and private commodity buyers that international markets … could not be trusted to provide a stable supply of food commodities’,Footnote 12 which sparked interest in investment in agricultural land to secure direct access to food in times of crisis.Footnote 13 The possibility of continuing increases in global food and commodity prices has led foreign investors to enter the agricultural market in greater numbers.Footnote 14
Growing interest in agricultural land investment has been linked also with changes in trading regulations of financial derivatives based on commodities,Footnote 15 as well as increased demand for biofuels.Footnote 16 All these factors are interlinked. For example, the growth of the biofuel industry is itself considered to be a major factor in the increase in food prices.Footnote 17 Investors are drawn to African countries, in particular, for two main reasons: firstly, the availability of large areas of land that are seemingly uncultivated or vacant and can be acquired relatively cheaply; and, secondly, the presence of fragile or weak governance systems.Footnote 18 Weak governance in the land sector includes lack of tenure security for local communities and lack of transparency regarding land transactions, both of which facilitate land grabbing because local communities cannot effectively defend their proprietary interests.Footnote 19 There is also concern that many states that invite investment in farm land are themselves food insecure, often with large populations dependent on food aid.Footnote 20
Ethiopia provides a useful example to aid our understanding of land grabbing, particularly in Africa. Perhaps best known for its susceptibility to drought, famine and political instability, it is also one of the poorest nations in the world.Footnote 21 Although Ethiopia has made significant progress in the last five years in relation to achieving the UN Millennium Development Goals (MDGs),Footnote 22 it remains one of the world’s largest recipients of foreign aid and many Ethiopians still lack access to basic water, sanitation and health services.Footnote 23
According to Human Rights Watch (HRW), the government of Ethiopia has leased an estimated 3.6 million hectares of land to investors since 2008.Footnote 24 Investments are negotiated between investors and the federal or regional governments.Footnote 25 For example, the Indian company Karuturi has been involved in floriculture in Ethiopia for a number of years, and has expanded its landholding to cultivate rice, palm oil, maize, and sugar cane.Footnote 26 Similarly, Saudi Star, a company owned by a Saudi oil billionaire with ties to the Saudi government, is reportedly developing land along the Alwero River in the Gambella region in order to produce rice, primarily intended for export to Saudi Arabia.Footnote 27
At the same time as leasing land to foreign companies, the Ethiopian government is engaged in relocating tens of thousands of indigenous people in a number of different regions, including Gambella, in a programme known as ‘villagization’.Footnote 28 According to the Ethiopian government, ‘villagization’ is voluntary. However, evidence gathered by HRW indicates that community resistance to relocation has been met with governmental intimidation, violence, arbitrary arrest, and detention.Footnote 29 The Ethiopian government insists that the primary aim of ‘villagization’ is to ensure that people in rural areas have access to schools, clinics and other facilities to improve their standard of living and to provide opportunities for social and economic development.Footnote 30 However, HRW also reports that the promised facilities often do not materialize and many communities have been relocated a long way from the land which they had previously cultivated, without replacement land being made available on which to grow food.Footnote 31 Relocation has also resulted in community excision from forests and rivers which provide access to necessary food sources, leaving many communities at risk of starvation.Footnote 32 Some relocated villagers claim that they had been informed by government officials that the land was to be made available to investors who would grow cash crops. It can be difficult to gain access to detailed information about land deals in Ethiopia because of a lack of transparency about such deals on the part of the government and because of inaccuracy or the unavailability of rural land records.Footnote 33 However, the patterns of known investment reveal that investors are interested in the most fertile land with access to water for irrigation. Arguably, it is not coincidental that the ‘villagization’ programme appears to be concentrated in those areas where land is leased to foreign investors.Footnote 34
3. The Impact Of Land Grabbing
Land grabbing has provoked a great deal of debate. Demand for land is driven, in the first place, by food-importing countries that seek a buffer against future food price volatility and want to provide food for their burgeoning populations.Footnote 35 Secondly, global agribusiness and agricultural commodity traders are extending their operations across more and more countries in search of lower production costs and higher profits.Footnote 36 Thirdly, financial institutions are interested in investing in land because of the potential to profit from rising land prices, as a hedge against inflation and because of the possibility of profiting from agricultural investments in the longer term.Footnote 37 This section considers the various impacts of land grabbing on local populations affected by transnational land acquisitions.
Investment, trade, employment and infrastructure
Foreign investment in agriculture is often promoted as providing opportunities for countries to revitalize agriculture for the benefit of local farmers by providing expertise, skills development, access to technology and connections with global markets.Footnote 38 Investment is also widely seen to be necessary to bring more land into production and to provide local employment opportunities. It is argued that as long as investments are properly managed, local communities and governments can benefit from increased tax revenues.Footnote 39 There is evidence from projects in East Africa and Sudan that foreign investment has led to increased agricultural production by providing access to markets.Footnote 40
However, it is vigorously debated whether land deals actually benefit local communities and whether the interests of communities are protected when such transactions are formed. A study of land acquisition contracts, for example, has concluded that land regeneration requirementsFootnote 41 are not generally included.Footnote 42 The claim that land investments will generate jobs is also questionable. Labour requirements depend on crop choice and organization of production. Crops that require manual labour, such as commercial fruit and vegetable production, generate far more jobs per hectare than large-scale mechanized grain farming, for example.Footnote 43 Wage rates for agricultural labour are typically very low and employment is often seasonal and short term.Footnote 44 Analysis of land investment in Ethiopia indicates that, while some local people have been employed, labour is often brought in from other regions; this exacerbates competition for land and food resources such as fish and wildlife, conflict between communities, and pressure on infrastructure and ecological systems.Footnote 45
There is also concern that foreign investment in agriculture may, in fact, worsen food insecurity rather than provide a solution, by reducing the competitiveness of domestic production as a result of increased competition for land and labour.Footnote 46 This would increase production costs and ultimately raise the price of food for domestic consumers. Local producers may be further harmed if higher domestic prices lead to an increase in imports of cheaper food.Footnote 47 The Ethiopian government has provided a range of incentives for foreign investors to produce cash crops for export, including tax exemptions and grace periods for land rents.Footnote 48 This has been justified by government officials on the basis that land leases and exports provide them with the necessary resources to buy food on the global market.Footnote 49 It is questionable, however, whether buying food on the global market and providing this as food aid to local populations is a better response to the problem of food insecurity in the long term than ensuring that food production meets local needs and supporting the development of domestic self-sufficiency.
The promise of infrastructure development is also emphasized as an advantage of investment in agriculture.Footnote 50 However, whether and how investment projects benefit local communities depends to a large extent on their design and management.Footnote 51 Friends of the Earth (FOE) conclude that ‘[p]oor contracts are marred by a lack of transparency, safeguards and monitoring; promises of jobs, schools and hospitals don’t materialise’.Footnote 52
Food insecurity
The Ethiopian example demonstrates that land grabbing often involves the relocation of local communities in order to clear land for investors.Footnote 53 Foreign investors are usually more interested in growing cash crops for export than addressing local unemployment or food insecurity.Footnote 54 They favour fertile areas along river banks, which are not only ideal for cultivation but also provide access to water. Yet, many of the areas leased to foreign investors are also vulnerable to drought, flooding, and conflict.Footnote 55 In order to cope with such factors, farming practices in these regions have adapted. For example, in the Gambella region, farmers cultivate plots along the river as well as using shifting cultivationFootnote 56 on higher ground in case their riverside plots are flooded. Areas that have been left fallow as part of this pattern of shifting cultivation are often treated by the government as having been abandoned and made available to investors.Footnote 57 Forest clearing has further undermined food security as resources such as nuts, seeds, fruit and wildlife provide sources of food when harvests fail. Large-scale commercial farming has reduced access to water sources and degraded water supplies as a result of agricultural run-off; this has also affected fishing, which is another source of food in times of scarcity.Footnote 58 In many cases where communities have been relocated to accommodate investors, replacement land has not been made available to farmers or has been made available at an inferior quality.Footnote 59 This pattern is being replicated in many parts of Africa and around the world where land grabbing is taking place.Footnote 60
Environmental damage
Environmental damage resulting from large-scale industrial farming practices includes destruction of soil fertility, pollution of water sources, loss of biodiversity and draining of wetlands. Rural Cambodian farmers downstream from new industrial sugar plantations, for example, discovered their livestock and crops poisoned by chemicals.Footnote 61 Large-scale farming of plant species foreign to the local environment (such as oil palm trees) changes the natural ecosystem and affects biodiversity in (such areas) as demonstrated in West Africa where deforestation for new oil palm plantations has led to soil erosion and flooding in surrounding land.Footnote 62 Environmental degradation forces local small-scale farmers and pastoralists to leave their native lands. Some relocate to cities, while others clear forests or peat land to continue farming, thus perpetuating the cycle of environmental destruction.Footnote 63
Loss of culture
In impact assessments of land grabbing, the cultural importance of land to indigenous peoples is often overlooked. De Schutter observes:
[W]e have forgotten the cultural significance of land, and we reduce land to its productive elements – we treat it as a commodity, when it means social status and a lifeline for the poorest rural households.Footnote 64
To many communities affected by land grabbing, land is closely bound with cultural identity and connected with a variety of cultural practices. Some land areas are considered to have spiritual significance; foods collected from particular areas have a place in traditional and spiritual ceremonies and plants and trees provide both food and medicines.Footnote 65 For indigenous communities, the loss of ancestral land strikes at the core of their very identity, adversely affecting their way of life.Footnote 66
Water insecurity
Land grabbing has significant implications for water insecurity because of the dependence of agriculture on the availability of fresh water. One of the principal considerations for investors acquiring land is often, therefore, access to water resources.Footnote 67 Increased interest in water is also driven by the impact of climate change, with rising temperatures and more frequent droughts likely to intensify the need for crop irrigationFootnote 68 Various practices occur in relation to water in land purchase or lease agreements across different countries. In some agreements, there is little or no consideration of the adverse impact of increased water extraction and no stated limitation on the use of water.Footnote 69 In others, specific provisions relating to water rights have been integrated and some land agreements make explicit provision for the payment of water fees.Footnote 70 However, such contracts may have an adverse impact on local users if the host government is legally obliged to ensure that water is made available to investors.Footnote 71 This may require investors’ water usage to be prioritized at the expense of the needs of local populations.Footnote 72
Unregulated water use may further lead to over-extraction and the draining of wetlands. Wetlands play an important role in helping to regulate river flows, serving as a buffer against floods and renewing groundwater. Evidence from the Gambella region reveals that a number of important wetland areas have been drained for agricultural use.Footnote 73 The adverse impacts of wetland draining and large-scale water extraction on downstream users seem to have been ignored in many of the land deals in Gambella. The implications for water insecurity are similarly concerning.Footnote 74
Land rights
In many African countries, land use and ownership is governed by customary land tenure systems with local communities rarely having any formal land tenure rights. Formal ownership of land, especially in rural areas, is often vested in the government; farmers access land through local customary tenure systems, which enjoy ineffective legal protection.Footnote 75 This leaves farmers’ proprietary rights vulnerable against investors who have negotiated with the government on the basis of formal law.Footnote 76 This is the situation in Ethiopia, where investors negotiate directly with the government to lease land.Footnote 77 Even where farmers’ customary rights are protected by law, this is often subject to control by customary chiefs who may re-allocate land to foreign investors, thus depriving local populations who depend on the land for grazing or agriculture of their livelihood without access to legal remedies or compensation.Footnote 78
Ultimately, there is little evidence that the anticipated benefits of large-scale investment in farmland in Africa have actually materialized, while the potential disadvantages are disturbing. Indeed, land grabbing is likely to exacerbate rural poverty in countries that are already stressed and result in a net transfer of wealth from the poor to the rich.Footnote 79
The next section examines the relationship between land grabbing and the principles of sustainable development in international law.
4. LAND GRABBING, SUSTAINABLE DEVELOPMENT AND INTERNATIONAL LAW
In the words of Christopher Weeramantry, former Vice-President of the International Court of Justice (ICJ), the notion of sustainable development ‘represents a delicate balancing of competing interests’.Footnote 80 There is growing agreement that the core principles of sustainable development encompass sustainable use of natural resources, common but differentiated responsibilities (CBDR), the precautionary principle, public participation, good governance and inter-generational equity.Footnote 81 These core principles are predominantly derived from principles established under international law, particularly IHRL. We focus here on those aspects of sustainable development and IHRL that are most pertinent to land grabbing.
The principle of sustainable use requires states to manage their natural resources in a sustainable manner, taking into account the needs of present and future generations.Footnote 82 States have sovereignty over their natural resources, but limits are imposed by both IHRL and international environmental law (IEL). These include the obligation on states not to cause undue damage to the environment of other states and outside their territorial jurisdiction.Footnote 83 The principle of sustainable use goes hand-in-hand with the principle of equity and the eradication of poverty,Footnote 84 which calls for states to endorse fair and equitable utilization of resources among the population of the present generation, taking into account the rights of future generations in relation to those resources.Footnote 85 The obligations of states in relation to intra- and inter-generational equity further include a commitment to address poverty, as expressed, for example, in the MDGs.Footnote 86
The sustainable use and equity principles are complemented by IHRL, particularly the right to a sustainable environment. Although no international instrument explicitly recognizes such a right at present, there is clear recognition at regional levelFootnote 87 and by UN human rights bodies that the full enjoyment of human rights depends on a healthy and sustainable environment.Footnote 88 The right has found expression in a significant number of national constitutions, which indicates that the right to a healthy and sustainable environment is increasingly widely accepted at state level.Footnote 89
The unsustainable exploitation of resources undoubtedly impacts negatively on the social and economic rights protected under the International Covenant on Economic Social and Cultural Rights (ICESCR).Footnote 90 The UN Committee on Economic Social and Cultural Rights (CESCR) notes that damage to the environment threatens not only the right to an adequate standard of living, including the rights to housing, food and water, but also the right to health.Footnote 91 This clearly links to the intra-generational equity principleFootnote 92 which, at a minimum, requires that everyone should be provided with the necessities of life. In the land-grabbing context, the principle requires states to consider the equitable use and distribution of their arable lands for the benefit of their present and future populations.
Displacement of communities as a result of land deals clearly has a detrimental effect on their ability to source food and water, as well as housing, with consequential impacts on health and wellbeing. Without making alternative arrangements for members of those communities to grow food or have access to land for hunting and gathering or alternative water sources, such displacement ought to be considered a violation of the rights under the ICESCR, as well as the principle of equity. Arguably, these rights are further infringed by investor farming practices which pollute and negatively impact on neighbouring landholders. Moreover, the long-term effect of pollution and destructive farming practices on the environment will affect the ability of future generations to feed and house themselves with the potential for violation of their right to an adequate standard of living. The principles of sustainable use, equity and the protection of rights under the ICESCR are thus mutually reinforcing.
The duty of states to ensure sustainable use of natural resources is also reflected in the protection provided for the rights of indigenous peoples to the natural resources in their lands, affirmed in Article 15 of the ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries.Footnote 93 The UN General Assembly Declaration on the Rights of Indigenous PeoplesFootnote 94 specifically provides that indigenous peoples have the right to the land and resources which they have traditionally owned and occupied.Footnote 95 Displacement of indigenous communities of the kind taking place in Ethiopia – especially the forced removal of communities – is, in our view, a clear violation of the rights of these communities protected by international law.
The ICESCR further supports sustainable development by highlighting the role of international cooperation for the realization of economic, social and cultural rights.Footnote 96 It is widely accepted that state parties are required to respect the rights protected under ICESCR in other states. This includes ensuring that their citizens or companies do not violate the rights of persons abroad.Footnote 97 Investor states, therefore, arguably have an obligation to ensure that corporations incorporated in their jurisdiction that invest in land in host states do not engage in practices that encroach upon the rights of local populations, in particular their social and economic rights.
The CBDR principle,Footnote 98 alternatively, recognizes that all ‘[s]tates and other relevant actors’ are required to cooperate in their common global responsibility towards the environment,Footnote 99 and also takes into account that developed and developing countries have contributed to environmental degradation in varying degrees.Footnote 100 This principle acknowledges the different capacities of states to deal with environmental problems and the needs and interests of developing countries in particular.Footnote 101 CBDR further provides that developed states should bear responsibility for taking the lead and assisting developing countries in achieving sustainable development.Footnote 102 This responsibility ties in with IHRL, particularly the implementation of social and economic rights. For example, according to the CESCR, developed states have a duty to assist developing states in implementing social and economic rights to at least a minimum standard.Footnote 103 CBDR also relates to the right to development as embodied in the UN Declaration on the Right to Development (UNDRD).Footnote 104 This Declaration recognizes the responsibility of states not only to act individually to implement the right within their territories, but also to act collectively, in partnership with other states, to create an environment that supports the realization of the right.Footnote 105 This is of fundamental importance to land grabbing in light of debates that foreign investment in land seldom delivers the benefits claimed. It is arguable that the international community has an obligation to take action to prevent foreign investment which has the effect of depriving local communities (present and future) of the opportunity for development.
The precautionary approach,Footnote 106 which is related to decision-making processes in situations of scientific uncertainty, in many circumstances may require an environmental impact assessment (EIA) to be carried out. The ICJ, in its 2010 judgment on the environmental dispute between Argentina and Uruguay, expressly recognized EIAs as a practice that has attained customary international law status.Footnote 107 It has been argued that ‘[i]mplicitly, the language of the Court indicated that an environmental impact assessment is required by application of a precautionary approach, that is to say when there are risks that an activity may cause damage’.Footnote 108 The precautionary approach and the EIA requirement are supported by a number of IHRL rights. For example, it is arguable that whenever rights to land and water are granted to foreign investors, there is a possibility that activities such as intensive farming and the introduction of foreign plant species may pollute or distort the native ecosystem or otherwise detrimentally affect the environment and the rights to water and housing of local communities. In such circumstances, a precautionary approach should be taken to ensure that both the environment and the rights of local communities are protected. This does not mean that no development should take place. One way of ensuring such an approach is to require the carrying out of EIAs. In the context of land grabbing, what is required is proper investigation of the possible impact of the displacement of communities and the effect of new farming methods and crops before land deals are signed; the insertion of provisions to safeguard the environment and the rights of communities in land contracts; and ongoing monitoring of the activities of investors to ensure that their activities do not harm the environment and that the human rights of local communities are not infringed.
Two other mutually reinforcing sustainable development principles that are relevant to land grabbing are the principles of participation, access to information and justice,Footnote 109 and good governance.Footnote 110 Not only does public participation assist the authorities in making better decisions by providing access to wider sources of relevant information, it also allows the public the opportunity to be involved in the decision-making process, which potentially increases public trust in government decision making and contributes towards achieving the relevant public interest objectives.Footnote 111
The participation principle has a strong legal basis in IHRL. In terms of both the International Covenant on Civil and Political Rights (ICCPR)Footnote 112 and the ICESCR, states are required to follow appropriate decision-making procedures for policy making, administration and law making in securing the rights guaranteed under the Covenants. The CESCR has given substance to such process rights and specifies that in formulating and implementing strategies in compliance with state obligations in relation to the right to food, governments must comply with the principles of accountability, transparency and participation.Footnote 113 The UN Food and Agriculture Organization (FAO) has developed the PANTHER framework, which draws on a range of human rights treaties in identifying the principles of participation, accountability, non-discrimination, transparency, human dignity, empowerment, and the rule of law as essential to decision making in relation to the right to food.Footnote 114 The interdependence of the right to food and other rights – such as freedom of expression,Footnote 115 freedom of assembly and association,Footnote 116 the right to receive information,Footnote 117 and the right to take part in the conduct of public affairsFootnote 118 – further reinforce the applicability of these principles in the land-grabbing context.Footnote 119 There is evidence from Ethiopia, for example, that the government has not been transparent in land negotiations and has not provided local communities with any opportunity to participate.Footnote 120 In fact, resistance by local communities to relocation has reportedly been met with violence and intimidation.Footnote 121 These actions violate a range of civil and political rights as well as social and economic rights of affected communities, which underpin the principle of participation and access to information and justice.
Good governance requires the application of a range of widely recognized principles including the rule of law, transparency, accountability, effective management of public resources, control of corruption, citizen participation, and equity.Footnote 122 Good governance is underpinned by a wide range of civil and political rights, including the rights to equality, freedom of speech, assembly and movement, which overlap but may be more extensive than rights to participation and access to information and justice in environmental matters.
In the land-grabbing context, there is a noteworthy tendency for investors to enter into agreements in countries characterized by weak governance.Footnote 123 Weak governance goes hand-in-hand with ineffective protection of civil and political rights.Footnote 124 Although the 1994 Ethiopian Constitution makes provision for the protection of a range of human rights, enforcement is poor and opposition to the government and its policies is not tolerated.Footnote 125 There are widespread reports of certain ethnic groups being targeted, including groups that have been moved from their traditional lands to make way for foreign investors.Footnote 126 Dissent is met with harassment, detention and imprisonment. In response to criticism of its policies by non-governmental organizations (NGOs) including HRW, the Ethiopian government passed the Charities and Societies Proclamation,Footnote 127 which subjects NGOs to strict control and outlaws many of their human rights activities.Footnote 128 In the absence of the ability to exercise basic rights of political dissent, there are few checks on government action in relation to land deals and a consequent failure of good governance.
The next section explores an integrated sustainable development and human rights approach as a holistic framework for assessing the impact of land grabbing and for developing policy and regulatory responses to those impacts.
5. INTEGRATING SUSTAINABLE DEVELOPMENT AND HUMAN RIGHTS APPROACHES TO ADDRESS THE CHALLENGES OF LAND GRABBING
The principle of integration is considered ‘a bedrock principle of sustainable development’.Footnote 129 It reflects the interdependence and interrelationship between various aspects of international law relating to sustainable development (such as economic, financial, social, environmental and human rights), including consideration of the needs of present and future generations.Footnote 130 The integration of environmental protection with economic and social development makes the principle of integration a crucial aspect of sustainable developmentFootnote 131 and highly relevant to land grabbing.
As ICJ Judge Weeramantry notes, in his separate opinion in the Gabčikovo-Nagymaros case, the role of sustainable development is to reconcile the right to development with environmental protection.Footnote 132 On the surface, the right to development and environmental protection might be thought to pull in opposite directions. What connects them, however, is human wellbeing. The ultimate aim of the right to development is human wellbeing, and a healthy and sustainable environment is a prerequisite for human wellbeing.Footnote 133 It is arguable, then, that a human rights perspective is crucial for reconciliation of the conflict between development and environment, and thus crucial for the concept of sustainable development.
5.1. Evaluating the Sustainable Development and Human Rights Framework
One of the principal criticisms of sustainable development is that it implicitly supports the neoliberal idea of competitive markets and that the development aspect often overwhelms concern for the other dimensions of sustainability. Critics assert that the assessment of sustainability is too often determined by economists who favour economic development over social development and environmental protection.Footnote 134
A related criticism of sustainable development is that its emphasis on economic growth ignores the limits imposed by finite resources.Footnote 135 While, at first glance, the concept of sustainable development appears to disregard the possibility of limits, the principle of inter- and intra-generational equity, which is a fundamental aspect of sustainable development, does acknowledge the limits to development. The principle provides that:
[t]he present generation has a right to use and enjoy the resources of the Earth but is under an obligation to take into account the long-term impact of its activities and to sustain the resource base and the global environment for the benefit of future generations of humankind. ‘Benefit’ in this context is to be understood in its broadest meaning as including, inter alia, economic, environmental, social and intrinsic benefit.Footnote 136
Thus, in order to sustain global natural resources and the environment for the benefit of present and future generations, limits must be placed on consumption and economic growth. Limits are necessary to avoid irreparable damage to the environment and exhausting the non-renewable resource base.Footnote 137 Such an outcome would deny both present and future generations equitable access to the earth’s resources.
Even critics of sustainable development acknowledge that, in addition to being an accepted global directive at the international level, sustainable development has indelibly shaped international law: it has become part of IEL, it is found in a wide variety of international instruments, and it exerts a strong influence on practice.Footnote 138 Sustainable development is also directly and indirectly supported by international courts and tribunals, which have made an invaluable contribution through their jurisprudence to the implementation of its principles.Footnote 139
Although sustainable development is reflected in numerous international documents and in jurisprudence, its legal status remains uncertain.Footnote 140 Nevertheless, it has significant legal effect as a soft law principle that has gained ‘worldwide currency as a desirable objective for the management of global natural resources’.Footnote 141 Moreover, it has the potential to provide a framework for reconciling socio-economic development and environmental protection, which is widely recognized.Footnote 142
However, views on the extent to which sustainable development and its principles have been effectively implemented in practice are mixed. In the view of the ILA, ‘the overall conditions for sustainable development have worsened since 2002, environmentally, socially and in terms of the finance necessary to make the changes necessary’.Footnote 143 Although some progress has been made in implementing sustainable developmentFootnote 144 as we accelerate efforts to achieve the MDGs by 2015, it is acknowledged that obstacles remain.Footnote 145 Impediments include lack of political will to implement substantive changes necessary to achieve sustainable development;Footnote 146 limited finances to support its commitments;Footnote 147 difficulties in ensuring the integration of the three pillars of sustainable development;Footnote 148 and approaches to implementation which prioritize the economic pillar to the detriment of both ecological sustainability and social justice.Footnote 149 In the context of land grabbing, the problem of the skewing of priorities towards economic development and the lack of integration of ecological sustainability and social justice emerges most clearly.
Although sustainable development continues to be controversial within the international community as to its scope and purpose, it is a concept that remains very much en vogue.Footnote 150 Arguably, the very tensions inherent in the concept between economic development, social justice and environmental protection keep the sustainable development debate alive and contribute to keeping the spotlight on efforts to ensure a balanced approach to its three pillars.Footnote 151
Sustainable development and its principles comprise soft law; yet they are also policy objectives in a wider social and political context. Seen in this light, the status of the concept and many of the controversies surrounding it become less important. Rather, the focus shifts to how the sustainable development principles can be used most effectively as policy objectives and to maximizing their impact to achieve the overall goal of balancing economic, social and environmental concerns. This is demonstrated by the continued integration of sustainable development into the global political agenda, particularly the recent post-2015 UN Open Working Group Proposal for Sustainable Development Goals (SDGs).Footnote 152 The central role of sustainable development in the post-2015 UN agenda indicates acceptance by the international community of its underlying principles, and underlines their value in framing policy in the land-grabbing context.
In light of our argument that the problems raised by land grabbing – and, in particular, the skewed priorities – must be addressed through a combined human rights and sustainable development framework, the next issue for consideration is how IHRL can contribute to balancing the concept’s three pillars. It is significant that the Stockholm DeclarationFootnote 153 – one of the ‘first comprehensive statements of international concern with environmental protection’Footnote 154 and widely considered to have laid the foundation for the development of sustainable development as a global policy objective – makes use of the language of rights. Principle 1 of the Declaration states:
Man has the fundamental rights to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being and he bears a solemn responsibility to protect and improve the environment for present and future generations.
The integration of sustainable development and human rights is present in more recent iterations. For example, the 2002 ILA New Delhi DeclarationFootnote 155 consciously attempts ‘to bring together sustainable development with the rhetoric and substance of human rights’.Footnote 156 The Preamble to that Declaration notes that ‘the realization of the international bill of human rights, comprising economic, social and cultural rights, civil and political rights and people’s rights, is central to the pursuance of sustainable development’.
Evidently, the protection of human rights was seen as integral to sustainable development from the outset, and the overlap and multiple links between sustainable development and IHRL are widely recognized.Footnote 157 Yet, will greater integration of the IHRL and sustainable development frameworks necessarily assist in balancing the economic, social and environmental objectives of sustainable development? If, as the discussion of land grabbing reveals, the current approach to sustainable development gives precedence to economic development, and the IHRL framework necessarily supports social development, the key question becomes whether a combined framework can provide enough support for ecological sustainability. It is important to consider, in particular, how a human rights approach could ensure that social and economic development does not overwhelm ecological sustainability.
Critics of current attempts to use human rights to protect the environment argue that a human rights approach will only provide protection for the environment to the extent that it benefits humans. A focus on human wellbeing, they continue, is more likely to have detrimental consequences for the environment than to provide protection.Footnote 158 Other commentators contend that the promotion of human rights and environmental protection are inextricably linked and complementary.Footnote 159 Judge Weeramantry notes:
The protection of the environment is … a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.Footnote 160
Although the right to a healthy or sustainable environment is not yet fully accepted in IHRL, the last few decades have seen an ongoing process of ‘greening’ of human rights.Footnote 161 This refers to the reinterpretation of a range of human rights to include environmental protection on the basis that a sustainable environment is necessary for the full enjoyment of human rights. The development of IHRL is being driven by both human rights treaty bodies and human rights courts. The CESCR, for example, has made a significant contribution to the recognition of the importance of a healthy environment for the protection of a range of social and economic rights – including the right to an adequate standard of living (which encompasses the right to food and water) and the right to healthFootnote 162 – by its interpretation of the rights protected under the ICESCR.Footnote 163 Similar approaches can be seen in the jurisprudence of regional human rights bodies, such as the European Court of Human Rights (ECtHR), which has recognized that environmental damage which impacts upon the health and wellbeing of individuals may infringe the right to private and family life.Footnote 164 The close connection between a healthy environment and the enjoyment of a wide range of human rights has become part of human rights discourse, which mobilizes opinion at both the international and national level and builds consensus about the importance of ecological sustainability.Footnote 165 Critics of a human rights approach often fail to acknowledge the impact of human rights discourse on environmental policy, both national and international.Footnote 166
A combined human rights and sustainable development approach also has the potential to make an important contribution to addressing poverty. The link between poverty, human rights and sustainable development is clearly expressed in the Report of the Office of the High Commissioner for Human Rights on ‘Human Rights, Poverty Reduction and Sustainable Development’:
It is now widely accepted that, on the one hand, poverty should not be seen only as a lack of income but also as a deprivation of human rights and, on the other hand, that unless the problems of poverty are addressed, there can be no sustainable development. It is equally accepted that sustainable development requires environmental protection and that environmental degradation leads directly and indirectly to violations of human rights.Footnote 167
The impact of land grabbing demonstrates this point precisely. Land grabbing feeds into the cycle of poverty, environmental degradation and human rights abuses. Addressing it requires an integrated approach that recognizes that economic development is entwined with full recognition of human rights and a healthy and sustainable environment.
5.2. Implementing an Integrated Sustainable Development and Human Rights Framework: Some Suggestions
We have argued above that the integration of sustainable development and human rights (SD-HR) offers a holistic framework to address problems, such as land grabbing, that raise competing imperatives regarding development, environmental protection and human rights compliance. How, then, can the principles of an integrated SD-HR framework be implemented to achieve an equal balance between the three pillars of sustainable development? We highlight promising developments in three areas: soft law, human rights litigation, and land rights.
Using soft law to rebalance sustainable development priorities
There are already a myriad of soft law measures in place with relevance to land grabbing. These include:
∙ the FAO Voluntary Guidelines for Responsible Governance of Tenure of Land, Fisheries, and Forest in the Context of Food Security (FAO Voluntary Guidelines),Footnote 168 which have been praised for providing practical and progressive guidance on important land tenure issues, particularly in the area of agricultural investment;Footnote 169
∙ the Guiding Principles on Business and Human Rights endorsed by the UN Human Rights Council (UNHRC) in 2011;Footnote 170
∙ the principles on large-scale land acquisitions of the UN Special Rapporteur on the Right to Food;Footnote 171 and
∙ schemes such as the Roundtables on Sustainable Palm Oil (RSPO)Footnote 172 and on Sustainable Biomaterials and Biofuels (RSB).Footnote 173
These instruments are non-binding and are thus vulnerable to the criticism that ‘voluntary guidance can only go so far’.Footnote 174 Nevertheless, they represent positive achievements and provide guidance to corporations and governments with regard to sustainable agriculture, agricultural investment and land leases or acquisitions. With regard to the FAO Voluntary Guidelines, it has been noted that although the negotiations leading to their conclusion were participatory and dynamic between more than 130 countries, the challenge is now for states to adapt the Guidelines so that they may be implemented in accordance with national conditions and needs.Footnote 175 Efforts to transform non-binding international guidelines into national policies cannot be made by governments alone, but require the participation of a range of stakeholders, including local communities, NGOs and the business community.Footnote 176 National implementation measures can be supported by the sustainable development principles, particularly those of participation and good governance. The relevant SD-HR framework law and principles discussed above thus provide guidelines that can be used in both the creation and implementation of soft law relevant to land grabbing.
Some commentators argue that in order to address the problems raised by land grabbing, international trade and investment law must play a role. Not only does this area of law have effective enforcement mechanisms, it is also the legal framework most relevant to resource exploitation.Footnote 177 As Cotula points out, ‘[g]iven the importance of international trade in shaping the land rush, it is somewhat surprising that the law regulating trade has received so little attention in “land grabbing” debates’.Footnote 178 Thus far, there is no comprehensive hard law framework directly relevant to land grabbing in the area of trade and investment. Development of hard law in this area would provide an opportunity for the international community to integrate the relevant SD-HR principles from the outset and thus avoid the danger of states individually putting the interests of corporations ahead of sustainable development and human rights in land negotiations. This would be an ideal opportunity for states jointly to create a level playing field and to break the cycle of rights violations, social injustice, skewed development and environmental damage.
Using human rights litigation to implement sustainable development priorities
One of the main advantages of an integrated SD-HR framework is that IHRL opens up possibilities for the legal enforcement of sustainable development principles in the absence of clear legal recognition of the concept. While the right to a healthy and sustainable environment itself is not widely protected in IHRL, there is clear acceptance of the need to protect the environment in order to protect other human rights by human rights bodies within both regional and UN human rights systems.Footnote 179
The African regional human rights system is based on the African Charter on Human and Peoples’ Rights (ACHPR),Footnote 180 which is exceptional among human rights instruments in making specific provision for a right to a sustainable environmentFootnote 181 as well as the right to development.Footnote 182 The ACHPR also provides for the protection of civil and political rights together with a number of social and economic rights.Footnote 183 The relatively wide scope of the African human rights system thus clearly facilitates claims that may arise from the negative impact of land grabbing, including environmental damage and impacts on the health and wellbeing of affected communities.
The case law of the African Commission on Human and Peoples’ RightsFootnote 184 has made an important contribution to the conceptual development of an integrated approach to environmental and other human rights. The SERAC Footnote 185 case was the first to be considered by the African Commission in which the right to a ‘satisfactory’ environment was at issue.Footnote 186 The communication was brought by two NGOs on behalf of the Ogoni people.Footnote 187 The factual background concerned serious environmental damage and associated human rights abuses arising from the impact of oil extraction. The complainants’ argument was that the Nigerian government had failed to protect and was implicated in the violation of multiple rights, including the right to a ‘satisfactory’ environment, the right to health, and the right to life.Footnote 188
In upholding the complaints, it is noteworthy that the Commission did not focus on the right to a ‘satisfactory’ environment in isolation, but on the relationship between the environmental right and other rights and the impact of environmental destruction on a number of rights, including the right to health. The Commission interpreted both the environmental right and the right to health very broadly, imposing on the Nigerian state obligations to take steps ‘to prevent pollution and ecological degradation, to promote conservation and to secure an ecologically sustainable development and use of natural resources’.Footnote 189 In the view of the Commission, the protection of the rights to health and the environment also required the state to monitor (or ‘at least’ permit the monitoring of) threatened environments; to require environmental and social impact studies before approving industrial developments; and to provide affected communities with information and opportunities to participate in decision making.Footnote 190
The subsequent Endorois caseFootnote 191 was brought against the Kenyan state on behalf of a community that had been removed from its ancestral land to make way for a game reserve. The applicants alleged violation of a number of rights, including the right to culture,Footnote 192 the right to property,Footnote 193 the right to dispose freely of their natural resourcesFootnote 194 and the right to development.Footnote 195 The African Commission found the Kenyan government to be in breach of all the rights claimed.Footnote 196 It noted that even if the creation of a game reserve was a legitimate aim in interfering with the rights of the Endorois, there had been no provision for the effective participation of the community in decision making, no environmental and social impact assessments had been undertaken, and there was insufficient provision for compensation or benefit sharing.Footnote 197
The relevance of the SERAC and Endorois cases to the abuses arising from land grabbing is evident. Communities suffering from the negative effects of land grabbing – including environmental degradation, loss of livelihoods and draining of wetlands, as happened in the Gambella region of Ethiopia – are able to bring similar claims as communities such as the Ogoni who were affected by oil extraction. Access to the African Commission and the African Court on Human and Peoples’ Rights (ACtHPR)Footnote 198 is facilitated by a generous approach to standing which permits NGOs (including international NGOs) to raise issues before the Commission and the Court.Footnote 199 The Commission recognizes the role of the media in drawing attention to human rights violations and allows media reports to be brought in evidence.Footnote 200 This can significantly reduce the otherwise steep evidentiary hurdles that claimants face.
Hence, there are few procedural obstacles to prevent the bringing of claims of human rights violations resulting from land grabbing before the African Commission.Footnote 201 However, there are significant weaknesses in the system, including delays in finalizing cases and weak enforcement of judgments.Footnote 202 Since relatively few cases have been concluded, the jurisprudence of the Court remains undeveloped.
Regardless of identified weaknesses, however, there are a number of advantages in pursuing sustainable development goals via human rights claims before human rights tribunals. Firstly, it provides opportunities for the development of human rights law in support of sustainable development principles. This is apparent in the African cases discussed above, and also in the jurisprudence of the ECtHR, which has recognized the environmental dimension of a number of rights protected under the Council of Europe (CoE) European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),Footnote 203 including the right to life, the right to private and family life and the right to a fair trial.Footnote 204 The Inter-American Commission and Court of Human Rights have similarly held that activities destructive of the environment may breach the rights of indigenous communities, in particular.Footnote 205 The jurisprudence of the regional human rights tribunals also indicates significant progress in the development of procedural rights in environmental cases, as seen in the SERAC and Endorois cases.
Raising environmental issues in human rights cases also has a number of intangible advantages. Cases set precedents. Even where courts or tribunals are not formally obliged to follow their own decisions or those of other tribunals, a decision of one forum may have an effect on cases decided elsewhere. Cases such as SERAC may inspire national courts when deciding subsequent domestic cases. There is also growing evidence of cross-fertilization between courts and tribunals at the domestic, regional and international levels and such decisions feed into an international dialogue between courts.Footnote 206 Indeed, the ACHPR encourages such dialogue and provides that in exercising its functions the Commission is to ‘draw inspiration from international law on human and peoples’ rights’.Footnote 207 The SERAC case is particularly noteworthy for the extent to which the Commission engaged with the jurisprudence of other international human rights bodies.Footnote 208 Such engagement with the jurisprudence of other tribunals assists in the development of IHRL, particularly the integration of principles of sustainable development and the environment into human rights law.Footnote 209 Since international and regional tribunals thus develop, extend and refine international legal principles, litigation may also function as a substitute for enacting treaties.Footnote 210
Litigation can also influence the behaviour of states and of private companies, which would prefer not to have their actions held up for scrutiny. Both governments and private actors, particularly large corporations, will be concerned about the implications of decisions for their operations and for future claims. This may encourage greater compliance.Footnote 211 The focus on individual victims who have suffered harm as a result of the environmentally destructive activities of corporations or governments assists in building public support to oppose such activities. Litigation attracts publicity and feeds into public dialogue around the importance of environmental protection, helping to build momentum at both national and international levels for stronger protection against practices such as land grabbing. There is also growing evidence that communities adversely affected by foreign investment in developing countries are indeed turning to human rights courts to protect their rights to food, water and housing.Footnote 212
Clarifying land rights to protect communities from land grabbing
Land rights, or the lack thereof, lie at the heart of the impact of land grabbing on local communities. Proponents of foreign investment in agricultural land argue that such investment is necessary to bring land into production and to improve farming methods. However, land presented by governments as vacant or underutilized may in fact be in use as part of a system of shifting cultivation and/or provide subsistence for local communities who do not have formal rights of tenure. A number of different solutions to the problem of weak land rights have been proposed. A system of formal land titling and registration is often recommended as a way to protect local farmers, create land markets, and modernize agriculture.Footnote 213 Opponents of this approach have raised concerns about the imposition of Western concepts of individual ownership on communities who have a tradition of communal tenure.Footnote 214 It is also argued that individual titling may result in conflict between members of communities that had in the past shared communal land.Footnote 215 Individual titling would also affect the ability of pastoralists and other groups, such as fishers, to access land to make it possible for them to continue with their traditional way of life. There are also concerns that individual titling would exclude women and other vulnerable groups.Footnote 216
An alternative approach is to formally recognize existing community-based tenure systems and protect traditional patterns of land use through legislation,Footnote 217 although this approach is vulnerable to the argument that it may entrench discriminatory practices by excluding women and other minorities.Footnote 218 There is a growing consensus that any changes to land tenure systems should be based on a detailed assessment of the specific local circumstances.Footnote 219 The SD-HR framework has the potential to ensure that the protection of human rights and the environment are given due consideration in the development of local approaches to land rights.
De Schutter contends that weak land rights are merely part of a larger problem and that it is also necessary to reconsider the international preference for large-scale agricultural investment. He argues that the unfavourable comparison which is often made between the efficiency of industrial-scale corporate agriculture and the less productive smallholder system prevalent in most African countries is unwarranted. Longstanding neglect of agriculture by governments and the negative impacts of structural adjustment programmes both play a large part in the low productivity of the smallholder sector. De Schutter warns against the commodification of land and over-reliance on international markets. He argues that a different model for agricultural investment is necessary to support small-scale farmers, respect the rights of all land users, alleviate poverty, and address the food needs of local populations.Footnote 220 This proposal is supported by a number of studies that have concluded that small-scale farming is both more efficient and more environmentally sustainable than intensive single-commodity agricultural systems, while at the same time supporting vulnerable communities.Footnote 221
6. CONCLUSION
The recent report of the UN Secretary-General’s High-Level Panel of Eminent Persons on the Post-2015 Development Agenda identifies a number of so-called ‘transformative shifts’ as necessary drivers of the post-2015 agenda.Footnote 222 The first shift that is required is encapsulated in the expression ‘leave no one behind’. According to the report, this requires that no person should be denied ‘universal human rights and basic economic opportunities’, and includes the ending of hunger and the achievement of ‘a basic standard of wellbeing’. The second shift identified involves putting sustainable development at the core of the post-2015 agenda and, in particular, integrating the social, economic and environmental dimensions of sustainability.
Integrating the principles of sustainable development and international human rights law, and the implementation of a combined framework that ensures that economic development does not take precedence over social and environmental considerations, would not only strengthen the protection available to communities facing threats such as land grabbing, but would also advance the international understanding of the fundamental importance of human rights and ecological sustainability to economic development.
