Land grabs: how the law pushes people off their land
Tomaso Ferrando
2012-06-23, Issue <
http://www.pambazuka.org/en/issue/590> 590
The state as an instrument of capital interests is providing cheap and
disposable labour, land, and fiscal privileges to land grabbers.
Subverting the classic vision of the private-public power relationships,
some African countries are repeating the same motto that an East European
newspaper used on the occasion of the visit of the German chancellor in
1999: 'We forgive the crusaders and await the investors'.[1] As pointed out
by Ulrich Beck, in fact, 'in a global context where capitals are free to
flow without restrictions and where competition among countries represents
the rule rather than the exception, the threat is no more represented by the
fact of being absorbed in the dominant paradigm, but of being left outside'.
It must be of no surprise, therefore, that ideologically and economically
constrained participants of a global competition for investments, which are
mainly subsidised by low interest rates and financial alchemies, are
currently participating in a global regulatory race to the bottom where
anything is on sale, included land.
In particular, there are two different legal ways through which investors
can acquire different rights over land, depending on their counterparts and
on the proprietary regime of the host countries. Without making any
reference to the distinction between private and public law, these two
mechanisms could be called that of 'public grabbing' and 'private grabbing'.
Independently from the chosen method, the current events and the historical
comparison demonstrate that whether land in Africa is expropriated, declared
void, or exposed to rising competition between small and commercial farmers,
the fact that the regional population increased from 230 to 860 million
between 1960 and 2010, that the average cultivated are amounts at 0.3
hectares per capita,[2] and that the global demand for land and production
is far from refraining, make us affirm that the paradigmatic shift from
small-scale farming to industrialized exploitation will inevitably impact on
low income countries and the poorest and most vulnerable and marginalized
segments of the populations. If that is the reality of the facts, the
history of Africa shows that displacement and migrations, mainly
intra-regional, represent the solution to present or perceived risks, and
thus what we have to expect.
PUBLIC LAND GRABBING AS DIRECT EVICTION
Entering more into the details of the 'public grabbing', which on the basis
of the available data seems to be the most diffuse,[3] the land at the
center of the deal is considered by the host State as 'public or national'
on the basis of its own legal order or expropriated on the basis of a
declaration of 'public interest' or 'public necessity'. In both cases,
sovereign states maximize their internal power in order to define the
content and boundaries of their internal legal system, giving meaning to
broad concepts like 'public domain' and development, or drawing a series of
lines that trace a clear distinction between legal and illegal occupation,
used and unused land, available and not available land, and determining who
has the right to see his/her property title formalized. The way in which
these sovereign actions are undertaken can lead toward very divergent paths,
the two extremes of which are represented by the complete pursuit of the
common good and the total subordination to the needs of the global market
and of exogenous actors. What I claim hereafter is that sovereign, trapped
in the prisoner dilemma and in a ideological homogenization, is exercised by
several Sub-Saharan African countries in a way that unequivocally tends
toward the latter extreme, completely turning its back toward legal
diversity and alternative forms of development.
WHAT 'PUBLIC' AND WHAT 'INTEREST' IN THE DECLARATION OF PUBLIC INTEREST?
Taking as an example the 2012 report on villagization in Ethiopia by Human
Right Watch provides the dramatic reconstruction of the ongoing process of
resettlement that is taking place in the Gambella Region, and across the
border between Ethiopia and Somalia, under the auspices of the Ethiopian
government and its project of villagization for rural development.
Undertaken with the official goals of guaranteeing to relocated populations
'access to basic socioeconomic infrastructures [.] and to bring
socioeconomic & cultural transformation of the people', the Gambella plan is
part of a broader program of resettlement, that concerns 1.5 million people
in four regions (Gambella, Afar, Somali, and Benishangul-Gumuz), more then
100,000 of which lived or are still living in the Gambella Region. On the
basis of the data presented in the report, the decision of the federal
government to intrusively exercise its sovereign power over its land and
population,[4] undoubtedly raises several doubts concerning the respect for
national and international procedures in resettlements, the existence of the
required Free, Prior, and Informed Consent (FPIC) of the local population,
the pledged voluntary character of the resettlement, the effectiveness of
the compensation plans, and the subordination of people's interests to the
needs and wills of global investor. But, above all, it clearly demonstrates
the potential of sovereignty as a legitimate coercive power over the
population.
Although in the report the connection between large-scale agricultural
development and land displacement is kept in the background and there is no
direct connection with the 100,000 hectares of land that have already been
leased by the Federal Government to Karuturi Global Ltd.,[5] the case of the
Gambella Region appears as an emblematic example of a functional use of
sovereign prerogatives: according to the Ethiopian national constitution, in
fact, the federal state is provided with the power to expropriate and
resettle people after having identified and declared the existence of a
public purpose. In particular, Proclamation No. 455/2000 has codified in the
federal legislation the constitutional provision that protects people from
unjustified expropriation and guarantees the right to compensation.[6] More
precisely, Proclamation No. 455/200558 discloses the rationale lying behind
expropriation, and provides us with a clear image of how the notion of
development is currently filling the empty box of public interest and giving
it a meaning.
From the point of view of smallholders, public purpose represents a
double-edged sword that in the past was certainly utilized by some
governments in favor of local farmers and non-owners and against the rights
and interests of landlords, but that is now become a legitimate tool for
forced eviction informed by what certainly is a constrained, market-led and
economically driven ideological and political framework of the leading
elite. The Ethiopian case, together with the endless series of cases of
development projects which have been undertaken over inhabited land and
forced resettlement, represents, in fact, a classical example of the
monopolization of 'public purpose' by the idea of 'development', and of its
use in order to pursue objectives which are clearly against development as
intended by international law.
According to the 2004 'Review of progress and obstacles in the promotion,
implementation, operationalization, and enjoyment of the right to
development' by the UN Economic and Social Council, and on the basis of
article 1 and the preamble of the Declaration of the Right to Development,
in fact, the right to development is defined as a right to a particular
process of development in which 'all human rights and fundamental freedoms
can be fully realized'.[7] Pursuing development, rather than being a mere
economic process, has to enable people to realize the 'rights and freedoms
set forth in the International Bill of Human Rights, in their totality as an
integrated whole'.[8] Pursuing development, in other words, is not an end
that legitimizes any violation and abuse, but a process that has to be
treated as a right, a dialectic between state and people where all rights,
i.e. economic, social and cultural, as well as civil and political, are
realized together.
However, irrespective of the limits and boundaries determined by
international law as a supranational obligation, States are continuously
referring to 'development' as the key word to ideologically and
legislatively legitimize the acceptance of large-scale investments in land
that, as stated before, clearly violate the most fundamental rights of the
involved population. On the other hand, international financial
institutions, oblivious of the fact that, 'if one excludes the performance
of China from the estimates, from 1987 to 1999 there was a rise in the
number of poor from 880 million to 945 million',[9] and deaf to the critics,
continue pursuing an economic-development strategy, and to play a
fundamental role in financing large-scale investment in Sub-Saharan Africa,
manly by 'helping attract investors and shaping policy and law that allows
streamlined and lucrative contracts'.[10]
Although some remedies are some time provided in order to minimize the
negative impact of forced resettlement or to obtain the free, prior and
informed consent, it is also true that it is possible to count infinite
cases in which rules have been violated, therefore transforming the
completed resettlement from legal to illegal, and that the idea underlying
the possibility of compensation is that any plot of land is the same for
farmers, disregarding the evidence that the fact that some land is
commercially more attractive than other means that it is more productive,
and completely ignoring all the anthropological and sociological studies
that have demonstrated the unique relationship between land, culture and
identity. The clearest evidence is provided by the Gambella case: although
the Ethiopian authorities affirm that the entire 'villagization' procedure
is voluntary, entire households are moving back to their original villages,
unequivocally demonstrating the fact that land is not a commodity that can
be exchanged with any other available good.
By defining as 'national interest' or 'national good' land-related
development projects that do not respect the idea of the right to
development, that generate migration, and produce unresolvable violations of
the fundamental rights of people and local communities, states abuse the
rights that are conferred on them both by the international and national
community. If the distinction between internal and external sovereignty is
artificial, and if internal sovereignty has to be exercised in respect of
international law, in fact, the use of internal discretion in order to
define as 'of national interest' projects which negatively impact local
people and violate international obligations even when mitigation procedures
are in place, is, therefore, an abuse of sovereignty that can be condemned
in the appropriate fora.
In conclusion, as recently reminded by Liza Alden Wily,[11] the current rush
to land does not represent anything new for our planet, nor is the use of
sovereignty and legality as an instrument to perpetuate injustices and favor
private accumulation. The state as an instrument of capital interests is
utilizing its prerogatives to provide the latter with cheap and disposable
labor, land, and fiscal privileges. Extending what Erik Hobsbawn had already
affirmed in the '50s of the last century about public interest, we can thus
conclude that in many circumstances sovereign prerogatives are 'no more than
the forces of profit-pursuing private enterprise' which seek 'to turn land
into a commodity', 'to pass this land into the ownership of a class of men
impelled by reason; i.e. enlightened self-interest and profit', and 'to
transform the great mass of the rural population into freely mobile
wage-workers' (1962, 184).
In a system of international and national law based on fragmentation and the
maximization of national prerogatives in favor of selfish interests, the
legal response can hardly succeed if it remains individual: What is needed
is a network of local seeds of global resistance.
* Tomaso Ferrando is a PhD Student, Sciences-Po Law School, Paris.
* Please send comments to <mailto:editor_at_pambazuka.org>
editor[at]pambazuka[dot]org or comment online at
<
http://www.pambazuka.org/> Pambazuka News.
REFERENCES:
[1] Beck U., 2010, 'Reframing Power in the Globalized World', Organization
Studies 29(05)
[2] Int'l Fund for Agric. Dev., Doc. EB 2008/94/R.2, 'Policy on Improving
Access to Land and Tenure Security', 17
[3] Liz Alden Wily, 'Looking back to see forward: the legal niceties of land
theft in land rushes', 39 Journal of Peasant Studies 751-775 (2012).
[4] Article 51 (1) of the Federal Constitution entrusts the federal
government with the task of enacting laws 'for the utilization and
conservation of land'. Article 52(2)(d) gives regional states the powers and
functions 'to administer land and other natural resources in accordance with
Federal laws.'
[5] Article 1.1 of the Land Rent Contractual Agreement Made between Ministry
of Agriculture and Rural Development and Karuturi Agro Products PLC, signed
25 October 2010, states that: 'The scope of this Lease Agreement is to
establish a long-term land leas of rural land for [the] development [of]
palm, cereals and pulses farm on the land measuring 100,000 hectares (Itang
42,088 hectares and Jikao 57,912 hectares), located in Gambela Regional
State, Nuer Zone, Jikao District and Itang Special District together with
the lease certificate serial No. EIA-IP 14584/07 with all rights of easement
of amenities, fittings, fixtures, structures, installations, property or
other improvements standing thereon, to the company incorporated for the
purposes hereinafter mentioned by the lessee in the Federal Democratic
Republic of Ethiopia'. See Stebek E.N., op. cit.
[6] 'A Proclamation to Provide for the Expropriation of Land Holdings for
Public Purposes and Payment of Compensation', Proclamation No. 455/2005,
Federal Democratic Republic of Ethiopia.
[7] First report: E/CN.4/1999/WG.18/2; second report: A/55/306; third
report: E/CN.4/2001/WG.18/2; fourth report E/CN.4/2002/WG.18/6 and
E/CN.4/2003/WG.18/2
[8] UN Economic and Social Council
[9] UN Economic and Social Council, op. Cit., p. 9
[10] Oakland Institute, 2011, 'Understanding Land Investment Deals in
Africa. The Role of the World Bank Group', The Oakland Institute, Oakland,
USA
[11] Alden Wily, supra note 3.
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Received on Sat Jun 23 2012 - 16:50:09 EDT
