I. Introduction
Over the past decade, there has been a well-documented global rise in commercial demand for farmland, pastures and forest resources. While reliable data are difficult to come by, perhaps as many as 50 million hectares have changed hands during this period – typically from control by local people to commercial actors and investors.Footnote 1 These investments often take place in environments where the formal legal framework is weak at best and dysfunctional, violent and corrupt in worst cases. Weak institutional environments are compounded by problems of legal pluralism: national governments in many countries are de jure title holders of land, but local people and communities are the de facto users and managers. These de facto users and managers are increasingly recognized under international law, by international soft-law documents and by regional human rights courts as ‘legitimate’ rights holders.Footnote 2 Yet, governments and investors – both domestic and foreign – often lack the policies and processes needed to respect and protect these rights. As a result, conflict over land has grown significantly and agribusiness now surpasses extractive industries as the sector most often implicated in killings of land and environmental defenders.Footnote 3
To address this phenomenon, agricultural investors need to look carefully at land-based risk. They should search beyond formal title documents and legal rules to identify if any individuals or groups hold customary, traditional land rights in project areas based on long-term occupancy. If companies fail to identify, consult with and provide benefits to affected parties, local people’s human rights may be violated. As more businesses, governments and development organizations align policies and practices with the UN Guiding Principles on Business and Human Rights (UNGPs), social safeguard documents like the International Finance Corporation’s (IFC) Performance Standards,Footnote 4 and institutional and sector-specific safeguards and codes of conduct,Footnote 5 the need to address land rights and tenure issues as a part of human rights impact assessments and enhanced due diligence processes also increases.Footnote 6
This piece adopts a big-picture perspective and discusses initiatives from around the world that are working to end unsustainable land practices. Land transfers that displace local communities can contribute to human rights violations both directly and indirectly, e.g., when land rights defenders are targeted with violence or killed, when governments block peaceful community protests against land acquisitions, or when communities lose livelihoods or access to water and other services.Footnote 7 Recognizing the reality and the potential for harm, civil society has worked collectively to raise awareness of human rights concerns related to land. Civil society and community organizations have also worked directly with the private sector to improve policies and practices related to large-scale land acquisitions (LSLAs).
II. Advocacy to Raise Awareness and Change Business Practices
One strategy that non-governmental organizations (NGOs) have adopted to promote greater awareness of problems associated with LSLAs is the use of targeted advocacy campaigns. Advocacy campaigns can take different forms, from lobbying legislators and government officials to change laws and policies, to voter or ballot initiatives and public outreach that uses media platforms to promote a particular agenda. Over the past several years, public outreach advocacy, combined with an expanding body of research on the consequences of LSLAs, has played an important role in driving a global dialogue around the need to enhance corporate due diligence, restrict or regulate LSLAs and protect the land rights of local women and men in the face of domestic and foreign investments. Three examples of advocacy campaigns that have worked to raise awareness of the nexus between land rights and human rights are presented below.
A. Working to Shift Corporate Behaviour: Oxfam’s ‘Behind the Brands’ Campaign
In 2013, Oxfam launched a campaign to encourage the ten largest food and beverage companies in the world to improve corporate policies and practices related to human rights and the environment. Land rights were one of seven issue areas the campaign targeted.Footnote 8 A key element of the campaign was a scorecard that ranked these companies on their commitment to land rights and the other six issues. Throughout the campaign, Oxfam worked with companies to develop commitments that would improve their scores. Leveraging the power of ‘conscious’ consumers, the campaign raised awareness of how well (or poorly) firms were respecting and protecting the land rights of farmers and others in their supply chains. The campaign generated thousands of media stories and led to new commitments of ‘zero tolerance’ for land grabbing in supply chains by Coca-Cola, Nestle, PepsiCo, Unilever and Illovo Sugar (a subsidiary of Associated British Foods plc). Direct engagement with companies coupled with a consumer-focused advocacy effort helped change practices within several large multinational companies and, importantly, has the potential to change practices among the thousands of agricultural producers that supply these firms.
B. Building a Community of Support: International Land Coalition’s ‘Land Rights Now’ Campaign
Unlike the ‘Behind the Brands’ campaign, the International Land Coalition’s ‘Land Rights Now’ campaign (launched in 2016) is designed to bring together a wide variety of stakeholders to advocate for the need to respect and protect community and indigenous land rights around the world. The campaign has a goal of encouraging governments to double the amount of land legally recognized as owned or controlled by community and indigenous groups by 2020.Footnote 9 The campaign has built a broad alliance of grassroots and international organizations that share information and raise awareness of the risks facing 2.5 billion people living on communally managed lands as a result of LSLAs, forcible displacement and government failure to recognize and respect land rights claims. The campaign provides a rallying cry for members to lobby governments and the private sector for needed change, rather than a targeted effort to encourage specific firms to shift their behaviour. While the campaign has raised awareness of particular issues, it is not yet clear that governments have made the kinds of commitments to expand legal recognition of land rights that the campaign hopes for, nor is it clear how engaged companies are with this effort.
C. Mobilizing Women as Change Agents: The ‘Kilimanjaro Initiative’
The Kilimanjaro Initiative is a regional effort of African women to increase their voice and participation in land governance and LSLA processes, and to encourage governments to support gender-responsive laws to respect and protect women’s land rights from wrongful acquisition and transfer.Footnote 10 The initiative was launched in 2016 and included a trek up Mount Kilimanjaro by hundreds of women during the African Union’s ‘Year of Human Rights with particular focus on Rights of Women’.Footnote 11 That same year, the Land Policy Initiative – a joint programme of the African Union, African Development Bank and UN Economic Commission for Africa – launched a campaign to ensure that women hold at least 30 per cent of documented land rights in Africa by 2025.Footnote 12 However, significant social, political and financial barriers remain to achieve this goal. This means that the land rights of rural African women, which are recognized under international law,Footnote 13 often remain insecure, and the risk of displacement and other economic and social harms associated with LSLAs is an ongoing threat. Failure to respect these rights can put investors at risk of breaching the UNGPs and other business and human rights commitments.
III. Private Approaches to Improve LSLA Practices
While campaigns and civil society actions have certainly motivated corporate behaviour change, companies are also increasingly relying on self-regulation or ‘private governance’ to set standards for and mitigate their impacts on land rights. This can happen through certification schemes and individual company policies. However, because many of these efforts are still relatively new, little hard data exist to demonstrate whether they have been effective in reducing conflicts around LSLAs.
A. Land Rights in Certification Schemes
Some certification or responsible producer programmes in the agricultural sector, such as the Sustainable Forestry InitiativeFootnote 14 and the Global Roundtable for Sustainable Beef,Footnote 15 require that certified entities abide by national law, which includes national laws governing land acquisition and use. While this is a positive step, some national laws do not adequately protect local people whose land rights are recognized by customary law or under international soft law agreements. For example, indigenous peoples may have a right to Free, Prior, and Informed Consent (FPIC) under international instruments, yet many countries have not translated these international commitments, nor commitments to abide by the Voluntary Guidelines on the Responsible Governance of Tenure, into national legislation. As a result, if companies rely on certification that merely requires compliance with national law, they may overlook important rights holders and find that land disputes and land rights abuses persist despite acquisition of a certification.
Other certification schemes, such as the Roundtable on Sustainable Palm Oil (RSPO) and, to some extent, Bonsucro and the Roundtable on Responsible Soy,Footnote 16 require those seeking certification to also demonstrate that the right to use land ‘is not legitimately contested by local people who can demonstrate that they have legal, customary, or user rights’.Footnote 17 In certain circumstances, they also require those seeking certification to demonstrate that FPIC was obtained.Footnote 18 These requirements go beyond most performance standards and safeguards of international lenders, as well as most international treaties. Even with these steps, however, many certification schemes remain open to criticism for weak implementation and monitoring, among other concerns about their effectiveness.Footnote 19
B. Company Policies Regarding Land Rights
In addition to sector-level certification and sustainability efforts, some industry leaders are improving their own corporate policies and practices with regard to land. As a result of the Oxfam ‘Behind the Brands’ campaign, Unilever,Footnote 20 The Coca-Cola CompanyFootnote 21 and PepsiCoFootnote 22 all have specific policies regarding land acquisition and use within either the company and/or their supply chains.
Devolving this high-level policy to grower-level practices has, however, proven difficult for both certification standards and corporate policies, as local circumstances and customary practices can vary dramatically and can conflict with international expectations. To help bridge this gap, Landesa, with support from the UK’s Department for International Development, has been working with Illovo Sugar at four of its sugar cane facilities in Malawi, Mozambique and Tanzania to implement corporate policies regarding land rights with local staff, communities and farmers. Corporate staff and civil society representatives have been trained as land champions to identify land disputes and risks, such as encroachment on company land and conflicting natural resource uses, to help detect and defuse land-based concerns. Illovo has also helped farmers and community members create informal certificates that may settle some land disputes and document the rights over the land. The information is then shared with the government to support a formal land registration process. These approaches appear promising, although more formal study of their impacts is needed. Illovo Sugar reports that it now has a better understanding of its grower constituency, a more stable supply of sugar cane and can demonstrate goodwill to the community.Footnote 23 Anecdotal data from NGOs working with growers also suggest farmers’ satisfaction with such corporate interventions, but again, more formal study is needed.
For companies that are willing to identify and work to tackle land risks in their supply chains, certifications and policies are good first steps. Increasingly, guidance is available to help companies implement these commitments throughout their supply chains.Footnote 24 To translate these words into on-the-ground achievements does require an organizational commitment of time and resources to implement and monitor land-based commitments.
IV. Conclusion
Growing worldwide demand for resources and food, coupled with the growing global population, is creating significant local-level conflict over a chief non-renewable resource: land. Not surprisingly, the international land rights movement is seeking to bring attention to the plight of traditional communities who live on lands that are increasingly targeted for development. This tension between land development needed for economic growth and the rights of communities is resulting in various responses from national governments, international bodies, civil society and companies.
As noted in this piece, international advocacy campaigns have succeeded in drawing attention to land conflicts and in changing corporate behaviour around specific land issues. In addition, many land disputes are energizing local communities and stakeholders, such as the Kilimanjaro Initiative, which are having an international impact. Companies are adopting policies and procedures to identify and avoid land risks, which presumably will help avoid future land conflicts.
Many LSLAs have the potential to create local-level conflicts, project delays and reputational harm. These realities have made some investors ask whether better alternatives exist. Increasingly, agricultural land investors are looking to models that do not rely on land acquisition or dispossession of communities and, instead, are using techniques such as Illovo Sugar’s out-grower scheme (discussed above), directly leasing communal lands and creating joint ventures with community-owned companies.Footnote 25 The efficacy of these approaches is still being assessed. However, they offer hopeful methods for achieving economic growth that does not come at the expense of, but rather comes with consultation of and benefit to, local communities.
For those companies and countries where LSLAs remain the preferred or unavoidable option, a significant body of soft law has developed around best practices that companies should consult and learn from communities in order to reduce harm to communities. However, governments often fail to meet these international best practices when allocating land, thus dragging companies and communities into conflicts. Companies are well advised to educate themselves on best practices and to conduct independent due diligence of lands offered by host countries to detect and avoid or remediate land-related human rights abuses before moving forward with an investment or project.
Given pressures on land for crop production, other resource development and to accommodate a growing human population, it seems likely that conflicts between communities who rely on land and companies will continue to rise, as will international attention to the human rights consequences of LSLAs. Governments and companies should work together to avoid conflicts with communities at the outset by using the growing suite of available guidance and tools to conduct adequate human rights due diligence and community consultation prior to investment (even if the host government claims community consent has been achieved). Civil society should also continue its efforts to draw attention to the positive and negative impacts of land-based economic development. This issue cannot be solved by a single set of actors: it requires meaningful collaboration and increased attention from international and national organizations, businesses and communities to encourage economic growth while avoiding harm to communities who rely on land for their identity, wellbeing and livelihood.
