The global land rush: markets, rights, and the politics of food.

AuthorNarula, Smita
PositionIII. Assessing the Frameworks: Principal Distinctions and Overlapping Problems A. Principal Distinctions: Rights, Risks, and Land Distribution 1. Risks vs. Rights Violations b. Repudiating Rights Violations and Managing Trade-offs through Conclusion, with footnotes, p. 139-175

A third response to trade-off-related objections is that the market-plus approach accepts trade-offs that may not even be necessary to secure certain utility gains. As a case in point, the market-plus approach promotes large-scale land transfers that often involve trade-offs between existing land users' rights and the needs of populations abroad who rely on food imports to assure their own food security. By contrast, and because it holds investment processes to specific normative standards, the rights-based approach looks for methods that minimize trade-offs. For example, in the case of Saudi investments in Ethiopia, the rights-based approach would offer that large-scale land transfers to set up industrialized plantations are not the only option. Investors might instead support the ability of existing land users and small-scale farmers to make productive use of land in a more sustainable manner, which in turn can help ensure the food security needs of both Saudi and Ethiopian populations.

The market-plus approach does not give due consideration to these alternative development pathways, and instead simply assumes that there will be trade-offs, and that there will be "winners and losers on the regional ... level." (285) Dilemmas are of course conceivable under which it would be impossible to act without violating someone's human rights. But rights violations under those conditions are inevitable, and are different from the tradeoffs of concrete rights for vague and uncertain gains endorsed by the market-plus approach. The key point is that the market-plus approach accepts human rights violations even where they are not strictly required: Its balancing approach undercuts the deontological quality of rights and ultimately undermines their vindication. The rights-based approach repudiates these violations and affirmatively looks for methods that minimize tradeoffs--methods that do, in fact, exist.

  1. Addressing Distributive Concerns and Managing Conflicts Between Rights Holders

    The phenomenon of large-scale land transfers has also given rise to significant concerns around the distribution of benefits and resources. Both approaches purport to address these concerns but the market-plus approach struggles with a range of distributive issues precisely because it lacks a normative framework that would provide clear standards for assessing the impact of an investment on host communities. As a case in point, RAI Principle 6 states that investments should "generate desirable social and distributional impacts" and "not increase vulnerability" (286) but lacks a normative baseline against which such impacts should be assessed. Instead, RAI Principle 6 encourages investors to make decisions around benefit-sharing jointly with local communities, presumably through the consultation process signaled in RAI Principle 4. (287)

    This primary focus on the investor-community relationship promotes a piecemeal, project-by-project approach where investors become the stewards of economic development. Such an approach is neither appropriate nor viable. Investors are not an adequate substitute for the state: They are neither charged with the same level of human rights responsibility as the state under international law, nor are they sufficiently incentivized to self-regulate or act in service of host communities in the process of negotiation. (288) Instead, investors' fiduciary duty to their shareholders arguably puts profit-seeking ahead of the interests of the local communities in which they operate. In addition, and without specific standards against which to judge an investment's performance, both investors and states can simply point to the terms of the investment agreement to show that they have played their part--even though those terms may not adequately distribute benefits in the host community's favor or may distribute them inequitably amongst domestic constituencies.

    This point, in fact, exemplifies a broader problem with the market-plus approach on the question of the distribution of benefits. The market-plus approach argues that large-scale land transfers can, among other benefits, stimulate economic growth, increase agricultural productivity, secure better access to capital, and generate employment opportunities. (289) But these markers of success do not account for the distribution of these benefits across individuals. Economic success is often judged by an average measure of growth, such as a rise in gross domestic product or per capita income. This focus on averages obscures the fact that economic growth is rarely equitably distributed. (290) Even when average economic growth is high, it often bypasses particular populations--populations that are disconnected from market forces because they lack the requisite human capital. (291) In addition, those who stand to benefit from greater investment and employment opportunities may not be the same individuals or communities who stand to lose their land and livelihood in the transfer process. (292) The market-plus approach may also fail to address the role of discrimination against women or against particular ethnic, religious, racial, or caste groups as a reason for their economic exclusion.

    The rights-based approach, in theory at least, can help keep these differentials in check by insisting on specific rights guarantees and on the nondiscriminatory grant of those guarantees. (293) International human rights law recognizes that states must pay heightened attention to members of vulnerable populations. Specific covenants protect those members of the population that might suffer from discrimination while also calling for positive measures to ensure the full realization of their rights. (294) Critics of the rights-based approach might argue that such a framework, in application, engenders conflicts between rights holders. (295) In the context of large-scale land deals, for instance, potential conflicts exist between the rights of individuals and communities, and between the rights of host state communities and investor state communities. The rights-based approach, however, is cognizant of--and attempts to address--these tensions.

    First, the Special Rapporteur expressly acknowledges that "there is a high risk that traditional, patriarchal forms of land distribution will be further legitimized through the recognition of customary forms of tenure [that he advocates], in violation of women's rights." (296) "Such risks," he adds, "should be addressed through the inclusion of strict safeguards in the process of such recognition." (297) Specifically, he notes that such systems should be "carefully scrutinized and, if necessary, amended, to bring them into line with women's rights, the use rights of those who depend on commons and the rights of the most vulnerable members of the community." (298)

    Second, the interdependent and global nature of these transactions might engender conflicts between populations across states. In fact, the very language of ICESCR article 11(2)(b)--which calls on States Parties to "[t]ak[e] into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need" (299)--could be relied upon by net-food importing states to argue that these investments service the investor state population's right to food. The rights-based approach addresses this conflict by endeavoring to accommodate rights-holders in multiple states, while simultaneously insisting that in no state should people fall below a minimum standard in terms of their enjoyment of the right to food. Specifically, Principle 8 of the Eleven Principles notes that when entering into agreements with net-food importing countries, contracts should require that the land investor sell a certain minimum percentage of crops on local markets. (300) Furthermore, and as noted above, the rights-based approach also looks for alternative development pathways that do not give rise to such conflicts in the first place. (301)

    There are additional examples of conflict in the proposals put forward by the rights-based approach. The redistribution of land in favor of one constituency, for instance, may lead to the deprivation of another constituency's rights; in particular, the right not to be arbitrarily deprived of property and the right to be free from forced evictions might be implicated. Even if such deprivations are meant to further distributive justice goals, these efforts still can result in many rights violations. (302) To address these concerns, the Special Rapporteur calls for significant rights protections in the process of redistribution. (303) In addition, the land rights of indigenous communities may conflict with the need to ensure greater access to land for landless non-indigenous communities. This conflict, however, does not have a prescribed solution.

    In the end, these are difficult questions that do not lend themselves to easy answers. The rights-based approach recognizes that upholding rights for some may risk the rights of others. There are also significant obstacles to implementing the solutions offered to address some of these concerns, as discussed in Part III.B. But from a conceptual standpoint, the fact that these conflicts exist should not invalidate the rights-based approach; conflicts are, after all, intrinsic to any endeavor to manage the distribution of limited resources across multiple stakeholders. The strength of the rights-based approach is its normative framework that compels policymakers to endeavor to manage these dilemmas in a manner that prioritizes the needs of the most vulnerable communities. The market-plus approach struggles to protect these communities precisely because it lacks such signals and instead operates in a non-normative framework that emphasizes average utility gains. As a result, benefits are rarely equitably distributed and risks tend to be borne by the same vulnerable...

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