Land Tenure and Investments in Agriculture
The Committee on World Food Security (CFS) – the
world’s highest governance body that deals with food security issues
– will meet from 17–22 October in
Civil society is calling for the guidelines to focus on the core purpose of securing and sustaining equitable access and tenure rights to land, fisheries, forests and natural resources for indigenous peoples and small-scale producers, particularly women. The guidelines should, among others, provide effective safeguards to protect local communities from unsustainable land investments; oppose land grabs, given their tendency to concentrate control over natural resources and the many deficiencies observed in current and past land deals; and promote forms of investment that are sustainable and not based on acquiring land, but instead on investing in local land users, particularly small-scale food producers and their more ecological production systems, and on strengthening local tenure rights.
This is because land is crucial for small-scale producers, but unsustainable investments, resulting in the practice of ‘land grabbing’ and exemplified by biofuel production, large-scale infrastructure projects, carbon-credit mechanisms and speculation, is threatening food security for hundreds of millions of people. The UN Special Rapporteur on the right to food Olivier De Schutter has urged all parties to agree on the guidelines (Item 1), saying, “Land rights are the first building block on the road to achieving food security, and without international consensus on how land should be governed, the interests of vulnerable land users will continue to be swept aside.”
The High Level Panel of Experts (HLPE) of the
CFS had earlier this year released its report on land tenure and international
investments in agriculture. The HLPE called on governments to
We reproduce below the Summary and Recommendations for Policymakers (Item 2). The full report is available at http://www.fao.org/fileadmin/user_upload/hlpe/hlpe_documents/HLPE-Land-tenure-and-international-investments-in-agriculture-2011.pdf
Lim Li Ching
“Vulnerable land users must be protected by international
guidelines” - UN expert urges
GENEVA (3 October 2011) – “Land rights are the
first building block on the road to achieving food security, and without
international consensus on how land should be governed, the interests
of vulnerable land users will continue to be swept aside.” This was
the warning from Olivier De Schutter, the UN Special Rapporteur on the
right to food, only days before final negotiations on land governance
A set of far-reaching guidelines on land tenure
could be adopted at the next plenary session of the UN Committee on
World Food Security (CFS), to convene in
“We need to establish general guidelines on land governance before we adopt rules on land investment,” according to the Special Rapporteur. “Harmful investments to the detriment of local populations – so-called land grabbing - can only be warded off if we first secure the underlying rights of farmers, herders and fisherfolk.” The Special Rapporteur backed the CFS’ decision last year to defer examination of the land investment rules – the so-called Principles on Responsible Agricultural Investment – until agreement could be struck on the broader issues related to the governance of land, fisheries and forests.
These general guidelines must strengthen security of tenure for small-scale food producers: smallholder farmers, but also nomadic herders, and fisherfolk, all of whom are gravely threatened by the current commercial pressures on land. The guidelines also acknowledge the importance of more equitable access to land. De Schutter, however, emphasized that “redistributing land is not enough; it should be accompanied by broader efforts to support the beneficiaries, or it will fail.”
In encouraging responsible investment in land, the Special Rapporteur called on States to be wary of the dangers of speculation over land and concentration of ownership when land rights are transferred to investors offering to ‘develop’ farmland. “We must escape the mental cage that sees large-scale investments as the only way to ‘develop’ agriculture and to ensure stability of supply for buyers,” said De Schutter, who will present next month a report to the UN General Assembly in New York on contract farming and other business models, which can improve access to markets for small-scale farmers in a more inclusive way.
The Special Rapporteur considers that the Voluntary Guidelines could provide much needed guidance to States about how conflicts over land use should be addressed. In May 2011, he issued a detailed set of proposals to ensure that these land guidelines are consistent with internationally accepted human rights standards, including the right to food, which have concrete implications for land issues.
While some of these proposals have been integrated in the text, a number of delegations in the negotiation process have expressed reservations about specific references to existing human rights standards.
“States have nothing to fear. There is much to gain in adopting guidelines that will improve the ability of Governments to defuse land-related conflicts, in times of growing tensions over access to natural resources,” added De Schutter. “The guidelines will also strengthen the bargaining position of States when negotiating with private investors. This could help avoid the current ‘race to the bottom’ in which countries compete in order to attract investors, dismantling any existing protection land users enjoy.”
“In contrast,” the Special Rapporteur noted, “the costs of failure would be high. Without international consensus, other instruments will seek to fill the gap, such as those that are already being developed unilaterally by investment funds: a scenario that is far from being in the interests of vulnerable land users.”
“While the Guidelines themselves will be voluntary, the reporting on their implementation should be binding,” said the UN expert. “If countries do not face international monitoring and are not encouraged to report to their national civil societies about the progress achieved, much of the added value of the Voluntary Guidelines on the responsible governance of tenure of land, fisheries and forests will be lost.”
“Now is the right time and the CFS is the right forum,” the Special Rapporteur recalled, calling it “a unique forum in which governments and international organizations work together with civil society organizations and the private sector to identify ways to combat global hunger and malnutrition. Now is its opportunity to show it can shape consensus.”
Olivier De Schutter was appointed the Special Rapporteur on the right to food in May 2008 by the UN Human Rights Council. He is independent from any government or organization. For more information on the mandate and work of the Special Rapporteur, visit: http://www2.ohchr.org/english/issues/food/index.htm or www.srfood.org
“Access to Land and the Right to Food”, Report presented to the 65th General Assembly of the United Nations by the UN Special Rapporteur on the right to food (A/65/281), 21 October 2010: http://www2.ohchr.org/english/issues/food/annual.htm or http://www.srfood.org/images/stories/pdf/officialreports/20101021_access-to-land-report_en.pdf
“Comments on the Zero Draft of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests”, 16 May 2011: http://www2.ohchr.org/english/issues/food/other_documents.htm or http://www.srfood.org/images/stories/pdf/otherdocuments/20110516_comments-zero-draft-guidelines_en.pdf
Olivier De Schutter: +1-212-853-0520
Land tenure and international investments in agriculture
Extract from the report by the High Level Panel of Experts on Food Security and Nutrition
Summary and Recommendations for Policymakers
The Committee on World Food Security (CFS) at
its meeting of October 2010 requested the High Level Panel of Experts
on Food Security and Nutrition (HLPE) to conduct a study on land tenure
and international investments in agriculture and to present the findings
at its next session in October 2011. The study of the HLPE is to undertake
analysis and formulate policy recommendations in the following three
Given the breadth of this topic, the study team chose to focus on large scale investment in land. We recognize that pressures on land stem from both domestic and international investment, and the two are often linked. However, the international dimension is particularly important because of the very unequal access to resources which exists at global level. Land is becoming a global asset to be traded just like any other commodity. Yet land is different, since it provides a livelihood to more than 2 billion smallholders, many of whom are poor and food insecure. Land is also different due to the valuable environmental services it provides, and its strong social, and cultural attributes.
The last five years have witnessed growing investor interest in land and agriculture. While definitive statistics are hard to obtain, widely quoted figures assert that between 50 and 80 million hectares of land have been subject to negotiations by international investors, much of it in low income countries. It is generally agreed that more investment is needed in agriculture to address the needs of current and future generations. The report recognizes the diversity of experience between regions and countries, in terms of land availability, property rights, and public policy. But if such widely quoted figures are correct, there is good reason for concern about the impact of such land acquisitions on the food security of people in many of the countries hosting such investments. Can this large scale investment bring positive outcomes, or is it bound to damage the livelihoods of local people, and generate social and environment costs? Given the central role of government in managing and negotiating such inward investment, their role is key to setting the terms and conditions for ensuring a proper balance of interests between local land users and investors, and enforcing such contractual agreements. This report sets out recommendations for governments, international institutions and investors to address the serious concerns raised by this heightened interest in land acquisition.
1. Widely quoted figures assert that over recent years an estimated 50-80 million hectares of land in middle and low income countries have been subject to negotiation by international investors, seeking to buy or lease this land. At the same time, close on one billion people are short of food and another billion suffer from various forms of malnutrition in middle and low income countries, despite sufficient global food production. Since late 2010, food prices have risen to levels comparable to the food price spike of 2007-08, pushing more people into hunger.
2. It is widely recognised that increased agricultural investment is needed to raise yields as a means to improve food security in many parts of the world. Can such international investment in land be a means to improve agricultural productivity and rural livelihoods? Evidence from this land rush to date shows very few such cases. Rather, large scale investment is damaging the food security, incomes, livelihoods and environment for local people.
3. Research institutions, CSO and media sources
are fast gathering information on large scale land acquisitions. Despite
this, accurate data on important aspects, like scale, terms of the contracts
and impacts from investment are limited. Roughly two-thirds of the estimated
50-80 million hectares acquired as investments are in sub-Saharan
4. The range of interests behind large scale land investments include multinational companies engaged in a variety of investments including biofuels and extractive industries, foreign governments seeking an assured food supply, commercial farmers expanding into neighbouring countries, and financial institutions wanting to broaden their asset portfolio. Domestic investors are also important in many countries, sometimes in partnership with foreign capital.
5. More than three quarters of the land deals announced have yet to demonstrate tangible investment in terms of agricultural output. Part of this may be due to speculative behaviour. Delays in finalising land transfers, the time taken to raise capital funding, and conclusion of negotiation with governments will also account for some of this gap.
6. In many countries hosting large scale acquisitions,
the government claims ownership of land, water and other natural resources.
Hence, government is central in encouraging inbound investment, making
land available, and negotiating with investors as well as enforcing
contractual agreements. Given the scale of international interest in
land investment, a number of governments in
7. Growing demand for food, feed, and biofuels as well as minerals and timber is driving large scale international land investments. Governments of countries that rely on food imports want to secure their nation‟s food security by buying productive foreign land. Policies to substitute biofuels for petroleum for transport in the EU and elsewhere are generating strong and unsustainable demand for oil palm, sugar cane and jatropha.
8. Ecological stress, such as water shortages and drought, combined with environmental policy, such as nature conservation, and carbon sequestration projects like REDD+, are also prompting increased international investment in land. All of these drivers are likely to increase over the next several decades, and intensify with the shifting impacts of climate change on agricultural production, putting ever greater pressure on land and water resources.
9. The finance sector is a relative newcomer to farmland acquisition. Its interest has been generated by rising prices for food and other agricultural commodities, the perception that the value of land and water is increasing, and the emergence of farmland as a global asset in a portfolio of other investments, offering a return less affected by the latest international financial crisis.
10. Global surveys of bio-physical potential show
that considerable reserves of land exist, especially in Latin America,
11. Much land in middle and low income countries is productively occupied and used, but does not have formal paper title, rendering such customary rights vulnerable to dispossession. Rights of women, social groups relying on the commons (grazing, woodland, wetlands), ethnic minorities and indigenous peoples are particularly insecure.
12. The legal status of land proposed for transfer or actually allocated to investors varies across countries and regions. State ownership is common, though government can also invoke eminent domain, on the grounds that it is acting in the public good, and reclassify private or village land to public land. The terms of acquisition also vary greatly, from short to long term leases, and freeholds. In case of leases, annual rental payments are frequently very low, though investors may be expected to commit capital to investment in infrastructure. Many contracts refer to employment provision, but are often imprecise about the detail or consequences of non-compliance. Equally, there is frequently little in the way of binding agreements on local procurement, processing of produce, and payment of taxes. Given that these contracts are usually kept confidential, it is very difficult for performance to be scrutinised or investors held to account by government agencies, parliament, local people, CSOs, or media.
13. Community consultation is usually required of the investor, but is frequently carried out at speed and without proper information, with benefits oversold and adverse impacts downplayed. The different actors – investor, government, local people – enter the negotiations with highly asymmetric information and power. Consequently, local people usually loose out, and governments loose both revenue and opportunities to achieve long term benefits for their populations.
14. This report was specifically tasked with reviewing the relative roles of small- and large-scale agricultural production systems, and there has been long-standing debate on their relative merits. The evidence shows that most crops can be grown just as productively by smallholders as in large commercial estates, although there may be significant economies of scale in the subsequent processing and marketing. The question therefore arises of whether and how large and small-scale production systems can co-exist and bring benefits to all parties. Disagreement revolves around the feasibility of such “win-win-win” solutions, and ways to ensure the rights and interests of local communities are central to agreements currently drawn up by governments and investors, often in secret. The huge number of smallholders in many middle and low income countries and the role they play in generating food, employment and livelihoods for more than 2 billion people should put them at the heart of agricultural development strategies. Yet they are often ignored. Rather than displacing them, governments should invest financial, human and scientific resources for improving small scale production, assist them achieve the necessary scale to access local and regional markets and improve their living conditions.
15. Many of the problems surrounding international investments in land could be dealt with by ensuring smallholder farmers gain a proper say in choices made about the future of their agricultural system, the terms on which they choose to engage with international investors, and more effective enforcement of existing policy and legislation at local, national and international levels. This report summarises the many measures and tools that can be used to improve the processes and outcomes from international investment in land and agriculture. Some have the force of hard law, while others have softer influence, or aim to harness informed consumer choice. In many cases these last substitute for weak capacity in host country governments.
16. A combination of measures operating on different actors and levels is most likely to be effective. These measures and tools, and the discussion set out here, have guided a list of recommendations. These recommendations must tackle the asymmetry in power wielded by governments and large commercial interests, and often used against small farmers. Weaknesses in governance, institutions and incentives mean that a “win-win-win” solution will not happen unless much stronger action is possible from both local land users and their governments (on their behalf). It also requires appropriate compensation mechanisms. Given the likely increase in pressures on land from international (and domestic) investment, it is vital to get a better balancing of the rights and interests of less powerful groups in negotiations with governments and investors. This approach should align with the broader need to focus public investment on smallholder agriculture and alternative production systems that are socially inclusive and environmentally sustainable.
The actions proposed below must recognise that food security is paramount, and measures must tackle the distinct asymmetry in power wielded by land users/occupiers, governments and large commercial interests. Many of the problems surrounding international investments in land could be dealt with by more effective enforcement of existing policy and legislation at national and local levels. However, current weaknesses in governance, institutions and incentives mean that a “win-win-win” solution will not happen unless much stronger weight is given to the capacities of both local land users and host country governments. Equally, because many of the problems are complex and inter- connected, the recommendations for policy need to be similarly differentiated in terms of sector, level and actors concerned. Given the likely increase in pressures on land in future, from international investment (as well as domestic), it is vital to get a better balancing of the rights and interests of less powerful groups, in negotiation with government and investors.
Host country governments
1 Decisions taken now will have major repercussions for the livelihoods and food security of many people for decades to come. Much discussion about large-scale land acquisitions has been highly polarised rather than seeing where there might be some common ground. The people who are most directly concerned by such investments must have their say. There is a need for inclusive debate in host countries concerning pathways for agricultural development and land use planning. Governments should open up this debate, rural poor people (small farmers, indigenous peoples, pastoralists, landless labourers, forest dwellers, rural women, among others) must be central to it, and continued scrutiny from autonomous civil society can help make the renewed interest in agriculture work for broad-based sustainable development. Governments should set up appropriate institutions to organize this consultation and vision development. Governments must have clear, transparent equitable land policies that are accessible, allowing for transparent transfers, equitable access, manageable systems of registration and deeds as well as open transparent heritage rights.
2 Host governments must recognise that their citizens
have the right to free, prior and informed consent in relation to the
land and natural resources on which they depend for their livelihoods.
Governments must strengthen and secure rights to land for millions of
land users who currently have uncertain tenure over their resources.
This includes smallholder farmers, pastoralists, shifting cultivators,
fisherfolk, indigenous people, and forest dwellers. Particular attention
is needed to secure the access and use rights of women, ethnic minorities
and indigenous peoples. Given the diversity of contexts, a multiform
approach to land tenure is required, which mixes different legal and
administrative modalities. Governments should learn from promising low
cost decentralised systems for registering and managing rights, at both
the household and community level. This must include common pool resources,
which are essential for continued mixed farming, pastoral and indigenous
livelihood systems in many low income countries. Given the accelerating
pace of large scale land investment, and the limited capacity in many
government administrations, community rights registration is vital to
ensure protection of livelihoods and associated food security. In settings
marked by inequality in land control and ownership, redistributive land
policies (such as land reform, land restitution) should be carried out.
3 Governments should prioritize investment in the small farm sector and in alternative food systems that are socially inclusive and just as well as environmentally sustainable, using agro- ecological principles (see Appendix). In places where large-scale land investments are underway, governments interested in promoting investment should encourage business models that involve collaborating with local farmers and generating employment opportunities, not just land acquisition. Given the major asymmetries in expertise that often characterise the negotiation of deals for agricultural investments, there is a need for legal, financial and technical advice to be available for governments as well as for local communities. One option would be for this legal advice to be provided by the FAO Land Tenure Service. Support may also be needed to rigorously scrutinise investment proposals. Robust systems must be in place that subject leases to compliance with investment plans, and existing land policies. Investment contracts should always provide a clause allowing government (on behalf of local communities) to cancel lease agreements or contracts when they fail to comply with agreed terms, or when insufficient compensation mechanisms are in place.
Support for farmer voice and civil society
4 Increased support is needed for farmer representation through their own organizations, with priority to social movements of the rural poor: small farmers, landless labourers, women, indigenous peoples and ethnic minorities, pastoralists and forest dwellers. Other civil society organizations who support the direct representatives of the rural poor should also be provided the needed institutional space. The rural poor‟s social movement organizations and relevant CSOs need to acquire stronger political weight in national and international decision-making structures. These organisations need backing at country level and internationally to ensure effective scrutiny and accountability of both national and international processes.
Improved practice by corporations
5 Investors and business enterprises have a legal responsibility to respect human rights, and must act with due diligence to avoid infringing human rights within their sphere of influence. Investing enterprises have the responsibility to provide adequate non-judicial access to remedy, including effective grievance mechanisms for victims of human rights abuses. States have the obligation to protect the enjoyment of human rights from being impaired by actors in their jurisdictions and to regulate business enterprises accordingly; and should provide effective judicial access to remedies from human rights abuse by investors. Home countries of business enterprises and investing nations or nations supporting investments in other nations must ensure that their actions respect and protect human rights in the host country according to applicable international and regional human rights norms and standards.
6 States should hold good faith consultations with local communities, before initiating any plan, project, and measure that may affect the land and natural resources on which they depend for livelihood, social and cultural activities. The procedures of these consultations should be in accordance with the Free prior and informed consent (FPIC) principles and related criteria, as well as the customary rules and decision-making structures of local communities. These procedures should facilitate access to the consultations by all affected peoples, ensuring in particular the participation of women and young people. The consultations must be conducted in a climate of trust that favors productive dialogue, according to well-established standards and oversight by independent observers.
7 Donors should align more effectively their bilateral and multilateral initiatives in the field of agricultural investment promotion, to achieve positive outcomes for local farmers. For example, some donors argue that improving productivity and market access for smallholder farming is key to achieving the MDGs while multilateral lenders have been promoting and financing inward investment, including large-scale land acquisitions. Donors should also ensure fulfillment of the G8 and G20 commitments on increased funding support to agriculture made over the last 2 years. This should include support for public infrastructure and policy development to create an enabling environment for smallholder agriculture – based on evidence showing that smallholders can be highly dynamic and competitive on global markets, and that small farm development is feasible and desirable for its impacts on poverty reduction.
8 International support is needed for a large increase in public funds for agricultural research and development, emphasizing agro-ecological approaches. There are major challenges ahead if we are to meet the food needs of 9 billion by 2050 in ways which can keep within planetary boundaries, address the impacts of climate change and make land use a net carbon sink. Given the need to reduce further expansion of cultivation into forest and pasture land, a particular focus is required on closing the yield gap‟, especially in middle and low income nations without forgetting the increasing need for ecological sustainability. This requires further strengthening of capacity in a range of key skills.
Governments that are home to international investors
9 Taking into account that it is the State’s obligation to protect the enjoyment of human rights abroad against harm emanating from its own territory, as articulated by Treaty Bodies in the UN Human Rights System, home governments have a responsibility to make sure that their companies operate according to the highest standards in relation to human rights, and environmental management. They should enact legislation which requires compliance with international human rights and environmental standards by their nationals operating overseas, and a mechanism whereby people in the country hosting the investment can hold the company to account for its actions.
The Committee on Food Security
10 The CFS shall ask governments to report each year on actions being taken to align international (and domestic) investment in land with food security concerns, including measures to prevent speculative pressures on land, such as leases conditional on proven investment plans.
11 Given the major role played by biofuels expansion in accelerating investments on land, the CFS should demand of governments the abolition of targets on food based fuels, and the removal of subsidies and tariffs on biofuel production and processing.
12 Since many deals and investments are so recent and, according to World Bank‟s prediction “the ‘land rush’ is unlikely to slow” (World Bank, 2011), following the approval of its Voluntary Guidelines for the Responsible Governance of Land, Fisheries and Forests, the CFS shall seek to establish at the FAO an observatory for land tenure and the ‘right to food’ to monitor the processes of access to land and the implementation of the Voluntary Guidelines, ensuring that the investments will result in decreased hunger and poverty in host communities and countries.
13 The CFS should encourage further support to regional processes, such as the African Union‟s Land Policy Initiative, to link these to national policy reform (e.g. through the Pan African Parliament and the African Court of Human Rights).
14 During the 12 month process for consultation on the principles for responsible agricultural investment being led by the CFS, attention should also be given to the best means by which investment can contribute most effectively to promoting food security, especially in low and middle income countries, and that all players are involved.