FAO global guidelines on tenure of land, forests and fisheries adopted

by Rhodri C. Williams

I’m not sure who comes out looking worse on this one, BBC or me. On BBC’s ledger sheet, I was intrigued to see a headline to the effect that the “UN adopts historic ‘land grab’ guidelines” – and even more intrigued to click on it and find no links, nor the barest reference to the sponsoring UN agency, the name of the guidelines or any other clear hints as to how I might set about reverse engineering my way to the actual text the article was about.

Lets stop for a second and consider what this says about how the UN is perceived. Would the BBC note the passage of an important policy in the US without once naming the responsible government ministry, the actual name of the policy or the URL where you could find the text? It must be distressing for UN employees to find their sprawling, diverse, and often bitterly divided institution still so easily written off as a monolith.

For my own part, I eventually managed to use the one direct quote in the BBC piece to find my way to a much more journalistically impressive effort by the Miami Herald. Which helped me to the realization that I had lost track of the process of adoption of the FAO’s new ‘Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security’, despite having blogged on them only a month ago.

In my own defense, I had reasonable grounds for confusion. Most of the buzz generated by the guidelines so far seems to come from their association with addressing the current phenomenon of large scale investments in land (more colloquially referred to as large scale land-grabbing). For instance, the BBC describes them flat out as “guidelines for rich countries buying land in developing nations”.

However, the FAO itself announces the guidelines in a much more nuanced manner that conforms to my own earlier understanding: although much of the “public debate has focused on the so-called ‘land-grabbing’ phenomenon,” this is only “one of the issues that are dealt with in these guidelines.” The press release notes that the new text “address a wide range of other issues” as well, many of them far more “entrenched” than land-grabbing.

In fact, the current guidelines appear to focus on the ‘supply side’ – what states experiencing outside investment can do to mitigate the conditions that leave their own populations exposed to its worst effects. Recommended measures such as recognition of customary rights, dispute resolution measures and managing urbanization are clearly directed toward the local authorities, and meant to confront destructive state practices such as the ongoing tendency to exploit post-colonial legacies in the form of ‘state land‘.

Meanwhile, behind all the noise (land grabbing sells, it seems), the FAO affirms that the separate and parallel process of developing guidelines for the ‘demand-side’ actors actually doing the investing in land remains on course:

For its part, the [FAO Committee on World Food Security] will next take a focused look at the issue of responsible agricultural investments in general. The body is currently planning a yearlong consultative process, to start in October, that could culminate in set of recommended principles for responsible investment in agriculture later in 2013.

In implementing the new guidelines, the FAO is banking on buy-in achieved in what was, by all accounts, an exemplary consultative process. It has also planned to engage in technical assistance and develop a series of technical handbooks designed to help countries adapt the guidelines to their local contexts. So more information – presumably along with a dose of confusion – to come.

FAO Voluntary Guidelines on land, fisheries and forestry governance near approval

by Rhodri C. Williams

The Food and Agricultural Organization (FAO) has announced the recent conclusion of a lengthy negotiation process to shape a set of Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security. The resulting final draft will soon be published and is meant to be adopted at a special session of the body’s Committee on World Food Security (CFS) in mid-May. Afterwards, it is expected that the document will provide authoritative guidance to governments in drafting laws and policies in this area, with its legitimacy derived from the inclusiveness and extensiveness of the three year drafting process.

The scope of the voluntary guidelines is broad, and includes “promoting equal rights for women in securing title to land, creating transparent record-keeping systems that are accessible to the rural poor, and how to recognize and protect informal, traditional rights to land, forests and fisheries.” While numerous recent cases of abuse of state prerogatives over customarily held land demonstrate the needs for such guidelines, the experience of actors such as the International Development Law Organization (IDLO) counsels a degree of caution. As noted by the IDLO’s Erica Harper in these pages, prescriptive approaches to customary systems have tended to be counterproductive in the absence of an intimate understanding of local context:

…what works in a given country context is situation-specific and contingent upon a variety of factors, including inter alia, social norms, the presence and strength of a rule of law culture, socio-economic realities, and national and regional geopolitics. In order to make strategic decisions on what is likely to yield sustainable and positive impact, development practitioners need to possess in-depth knowledge of the target country, its people and its customary legal systems, as well as the theories and practicalities pertaining to legal development and customary justice programming.

At the same time, the scope of the new guidelines is limited in certain interesting respects. For instance, the FAO PR notes that they “come within the context of intensifying competition for land and other natural resources resulting from a variety of factors, including population growth, urbanization and large-scale purchases of farmland in the developing world by both overseas interests and domestic investors.” However, unlike the FAO, IFAD, UNCTAD and World Bank Principles for Agricultural Investment, the new guidelines provide only indirect guidance on addressing the ‘global land-rush‘.

In fact, the FAO has a separate drafting process underway to address large-scale land investment. As reported in TN last January, the FAO commissioned a project team to examine the issue of land tenure in the context of international investments in agriculture, developing recommendations for the High Level Panel of Experts on Food Security and Nutrition (HLPE) of the CFS. The issue had been discussed at a policy roundtable at the CFS’ 2010 session (contrast the erudite overview provided by ILC with the Quatar National Food Security Program’s impenetrable defense of responsible investment). With the issuance of a July 2011 report and further side-event discussion at the October 2011 CFS session, the process seems to be underway.

However, the foreword to the July 2011 report clarifies that the issue is to be handled in a separate standard-setting process, resulting in “the elaboration of principles for responsible investments in agriculture with due consideration to the framework of the Voluntary guidelines on the tenure of land, fisheries and forests.” Muddying the waters slightly, the FAO also cooperated with Transparency International to develop a December 2011 working paper on how corruption in the context of weak governance undermines both land access and development. As reported here in TN, pervasive corruption in transnational land investment may be the crucial damning factor that has swung development opinion against the practice in recent months. In its press release, however, FAO referenced the forthcoming voluntary guidelines as its response to bad governance practices without mentioning the expert group on international investments.

More broadly, the new FAO guidelines will provide new material for the ongoing debate over corporate social responsibility approaches to land and natural resource exploitation, as well as non-state actor abuses more broadly. Two years ago, Chris Huggins posed the basic question of whether the lengthy and uncertain route of punitive enforcement measures should be chosen over the more forthcoming but less tested route of voluntary compliance. This question arguably remains as debated today as it was then. However, it is worth noting that Peter Spiro recently waxed optimistic in Opinio Juris, raising the possibility that Apple’s recent accession to the Fair Labor Association standards and auditing process could be “the biggest thing ever to happen in the world of private, rights-related codes of conduct” and “a major test case for the efficacy and legitimacy of non-governmental rights regimes.” So, onward FAO, and let a thousand voluntary standards bloom!

Week in links – week 42/2011: land disputes in Bolivia, India, Kyrgyzstan and the UK

This week, we have a few updates on recent stories covered in TN:

First, the indigenous protesters marching against the construction of a road through the Tipnis national park in Bolivia have reached the capital La Paz and are settling in to force the Government to negotiate on the issue. Nicholas Fromherz of Foreign Affairs provides an analysis of the tremendous damage the mishandling of this issue has done to President Evo Morales’ credibility.

Having recently taken China to task for its stereotypically stilted response to public outrage over crooked land takings, as well as its stereotypically draconian response to community resistance to being evicted, I am now presented with the classic counter-stereotype in India, where public acquisition of rural land to facilitate large-scale investment is also a pressing issue. Having adopted a new ‘light footprint’ policy on facilitating purchases of land for industrial use after protests last spring and summer, the government of the Uttar Pradesh province now faces a court decision ordering the return of previously acquired land and compensation for parcels investors already built on. Without taking a position on the actual case, it is a classic instance of the great BRIC dichotomy, with India a trickier business environment than China, but frequently for the right reasons.

More dispiriting follow-up to the ethnic mayhem in Kyrgyzstan last year, this time in OpenDemocracy. First, Bruno de Cordier gives a bleak overview of structural violence in Central Asia in the form of rentier politics and patronage societies. Then Elmira Satybaldieva portrays how these patterns are reflected in the fragmented and untransparent politicking in the leadup to Kyrgyzstan’s 30 October elections. With the land disputes and other grievances underlying last year’s violence still unresolved, the prognosis is worrisome.

FAO has described how Sweden, notwithstanding its past ambiguity on the right to water, is funding a highly innovative scheme to help farmers in eastern Kenya develop greater resilience in the face of climate instability, in part through better water management techniques. IRIN, for its part, reports on how poorly Kenya fares in general in advance mitigation of disasters, whether of the natural variety or man-made examples such as last month’s appalling pipeline fire.

And just to recall that housing and land issues remain relevant in the Global North, the New York Times reports on the messy beginnings of the eviction of a traveler community from the Dale Farm encampment they have occupied for years in Essex, UK – while the Guardian documents the surprisingly peaceful end of the process. On OpenDemocracy, Justin Baidoo-Hackman explores the issue of whether the evictions qualify as ethnic cleansing (my take: forced evictions are already plenty bad).

Week in links – week 10/2011

First, the weblog equivalent of a moment of silence for the victims of the ongoing disaster in Japan. Six years after their adoption and sixteen years after the similarly devastating Kobe quake that gave rise to them, the Hyogo Declaration and Framework for Action on disaster risk reduction face a gruesomely concrete field test.

Second, on an administrative note, I should announce a likely hiatus in TN postings over the next ten days or so, during which I will be on mission in West Africa. I hope that a few guest-postings may land during that period (and they will be rushed to press) but its likely to be pretty quiet here otherwise.

Moving to news, UN housing rights rapporteur Raquel Rolnik focused on the right to housing in post-conflict and disaster reconstruction settings in her latest annual report. While I have not yet had the chance to review the report in detail, it is interesting to note that the press release focuses heavily on land rights for affected persons. From this perspective, there is likely to be some overlap with last year’s humanitarian guidance on post-disaster land issues (posted on by Esteban Leon here).

The FAO has released a new report on gender equality in agriculture that focuses on women’s unequal access to the various economic opportunities and inputs that would let them compete with men – and the enormous price tag of such bias in a hungry world where women make up 43 percent of the agricultural labour force in developing countries. If TN readers are willing to overlook one appalling pun (“a level ploughing field”), they will find much of interest.

The New York Times followed up on articles from October  2010 and January of this year with a more recent piece on the complications faced by NATO troops in Afghanistan attempting to compensate villagers for property destroyed in the course of counter-insurgency fighting.

Finally, following up on last week’s posting on the Economist’s special report on agriculture, I should point out that my plug for this week’s corresponding report on ‘property’ may have been a case of irrational exuberance. The new special report is a fascinating read on property as an investment, the ostensible safety of which appears increasingly fragile in an era of recurrent bubbles. Of great interest to me, but perhaps more in my capacity as a mortgage-holder in one of Europe’s few remaining bubble candidates than as a blogger.

Week in Links – Week 06/2011: Food prices, injustice and Egypt

- Confirming that earlier food price alarums represent a trend rather than a blip, the FAO registered the highest food prices ever earlier this month. Linking this development to the re-emergence of actual food riots in the last years, commentators in Foreign Affairs assert that violence generally fails to erupt unless food price fluctuations are accompanied by a concrete sense of injustice perpetrated by local actors. Whether this should be seen as a reassuring or alarming factor is left to you, gentle reader, to decide.

- While the situation in Egypt is less obviously connected to the subject matter of this blog (whatever the role of food prices there), it is one of the unfolding human rights events of the century and I cannot avert my eyes. And despite the breathing room the Mubarak regime gave the protesters by its cretinous decision to assault foreign reporters last week, things still look pretty precarious. Even as the military appears to wobble on not using open force against protesters, the Guardian has carried allegations of systematic torture of protesters by army units. Meanwhile, even murkier allegations are coming to light about the agenda of the Obama administration and the dubious resume of Omar Suleiman, the ostensible midwife of Egypt’s democratic transition. I am generally not one for conspiracy theories but at this point even fairly mainstream commentators such as Nicholas Kristof and Roger Cohen at the New York Times are nervously urging President Obama to keep himself on the right side of history. I never dreamed I would say this, but I am beginning to feel downright sentimental for the moral clarity (such as it was) of the Cold War.

FAO forum on on land tenure and international investments in agriculture

The FAO Forum on Food Security has invited interested persons to comment on the terms of of reference to be given to a project team that will examine the issue of land tenure in the context of international investments in agriculture. Based on the resulting final ToR, the project team is then expected to develop a report and recommendations for the High Level Panel of Experts on Food Security and Nutrition (HLPE) of the Committee on World Food Security (CFS) at its next session in October 2011.

Phew. Now that we are past all the acronyms, I hope readers will take the time to comment and to follow this process. The ‘global land-rush’ has, despite my best intentions, been sadly neglected to date on this blog. That said, it reflects the most existential land and property issues facing contemporary humanity and, as reflected in Chris Huggins’ excellent guest posting from last year, it is also an important point of contact (one might also say ‘conflict’) between human rights and development discourses related to land tenure. Indeed, the ‘land-rush’ label is somewhat misleading, as it applies to a diverse variety of practices, some of which may be sustainable, replicable and necessary, and others of which undermine both individual rights and sustainable development:

Governments stand at this crossroads where on the one hand, as many studies and analysis demonstrate, appropriate investments, efficient and effective use of natural resources and land may have both economic and ecological advantages under certain conditions but where, on the other hand, there are also typical examples of land grabbing with very negative effects for sustainable development, including social effects on small scale farmers, ecological effects such as decreased efficiency and effectiveness of the use of natural resources and the mining of soils.

In a world where food security is likely to require not only increased efficiency but also expansion of the area currently under cultivation, the report resulting from the current ToRs can provide some guidance on how to steer an unstoppable process in a sustainable direction.

Week in links – Week 46/2010

- The New York Times reports on extensive destruction of booby-trapped houses and damage to agricultural land through the construction of new military roads by NATO troops in Afghanistan. Compensation programs appear to be up and running but the verdict of one district governor is a little chilling: “We had to destroy them to make them safe.”

- UNHCR reports to the Third Committee of the UN General Assembly. The ReliefWeb headline says it all: “Voluntary Refugee Returns Worst in Two Decades; World Faces Quasi-Permanent Refugee Situations in Areas of Never-Ending Conflict, Third Committee Told.”

- In the latest twist in the protracted real estate crisis in the US, the New York Times reports on a new wave of adverse possession. By taking open possession of abandoned foreclosed homes, repairing them and even renting them out, private individuals are hoping to eventually meet the statutory requirements to receive title, with both positive and negative local impacts.

- On desertification and pastoralism in the Sahel, we have a bullish take from the EU-Africa Partnership and a more apocalyptic one on climate conflicts from Yale’s E360 publication.

- ASIL has made available an interesting introductory note to a recent property decision by the European Court of Human Rights – in this case, the Court confirmed that the definition of possessions under the European Convention includes final and enforceable arbitration decisions.

- Refugees International urges African Union member-states to ratify last year’s groundbreaking Kampala Convention on the rights of IDPs. IDMC has a dedicated webpage on the Convention.

- Indonesia gets serious about climate change adaptation with the announcement of new guidelines on permanent relocations of populations from disaster areas too dangerous to allow return.

- UN Habitat issued its technical assessment of housing reconstruction needs after the Pakistan floods.

- FAO launched a new report and website on ‘climate-smart agriculture’, highlighting a mixture of traditional and high-tech approaches that raise yield and reduce carbon emissions.

- Finally, an interesting example of the International Court of Justice (ICJ) taking up ‘HLP’ issues in a case in which Georgia accuses Russia of violating its obligations under the Convention on the Elimination of Racial Discrimination (CERD) by virtue of its failure to allow ethnic Georgians to return to the breakaway regions of Abkhazia and South Ossetia, where Russia is alleged to exercise effective control. A recent blog piece on this by the Harvard Program on Humanitarian Policy and Conflict Research provides some background and reminds of an interesting October 2008 interim measure in which the Court ordered the parties, among other things, to:

do all in their power, whenever and wherever possible, to ensure, without distinction as to national or ethnic origin,
(i) security of persons ;
(ii) the right of persons to freedom of movement and residence within the border of the State ;
(iii) the protection of the property of displaced persons and of refugees …

The week in links – week 41/2010

This week’s food for thought:

- Continuing the nervous drumbeat on the upcoming Southern Sudan referendum, here is Open Democracy on the apparent new delay to the Abyei referendum, and a good news-then-bad news analysis by Phillipe De Pontet at the Carnegie Endowment for International Peace.

- The International Law Observer notes that the Human Right to Water and Sanitation is now official – a recent decision by the Human Rights Council brings the number of states that have gone on the record to 178.

- Meanwhile, the FAO Right to Food people are about to release a guideline on responsible land tenure management and the right to food (it is available now in Spanish).

- Lyric Thompson reports in Open Democracy on the whiff of UN politics behind the anticlimactic tenth birthday party in the UN Security Council for Resolution 1325.

- In case anyone forgot the link between land and identity, here is a comment in the Jerusalem Post on what the construction ban and its absence is seen to signify by some in the Middle East. In the meantime, the NYT reports on the resumption of construction plans in East Jerusalem, and Open Democracy has news of a possible response, with the Arab League apparently considering whether to “appeal directly to the UN to recognise the state of Palestine.”

- From the US, Paul Krugman reports on the ongoing fallout of the mortgage crisis and the fact that it now appears that the USA, one of the world’s great proponents of rule of law and the sanctity of property, is witnessing foreclosures by banks that are unable to actually document the mortgage agreements they are enforcing.

- And in the unremarked on but terrifying land violence category, IRIN reports on inter-clan skirmishes over land in northeastern Kenya that displaced 600 families.

- Finally, the ECFR has issued a new short comment and report on the ‘spectre of a multipolar Europe with a fairly provocative set of findings:

• The post-Cold War order is unravelling. Rather than uniting under a single system, Europe’s big powers are moving apart. Tensions between them have made security systems dysfunctional: they failed to prevent war in Kosovo and Georgia, instability in Kyrgyzstan, disruption to Europe’s gas supplies, and solve frozen conflicts.
• The EU has spent much of the last decade defending a European order that no longer functions. Russia and Turkey may complain more, but the EU has the most to lose from the current peaceful disorder.
• A frustrated Turkey still wants to join the EU, but it is increasingly pursuing an independent foreign policy and looking for a larger role as a regional power. In the words of foreign minister Davutoglu, Turkey is now an ‘actor not an issue’. Its accession negotiations to the EU should be speeded up, and it must also be engaged as an important regional power.
• Russia never accepted the post-Cold War order. Moscow is now strong enough to openly challenge it, but its Westpolitik strategy also means that it is open to engagement – that is why Dmitri Medvedev suggested a new European security treaty a couple of years ago.
• Obama’s non-appearance at the 20^th anniversary of the fall of the Berlin Wall was the latest sign that the US is no longer focused on Europe’s internal security. Washington has its hands full dealing with Afghanistan, Iran and China and is no longer a European power.

The week in links – week 40/2010

A fairly modest crop after a busy week:

1. Oxfam’s turn to ring the alarm on the numerous risks entailed by Southern Sudan’s upcoming referendum …
2. … and to promote reconstruction of the agricultural sector in Haiti in a new briefing paper.
3. UNHCR comments on how protracted conflict situations are creating a ‘new global refugee’ population.
4. FAO and WFP comment on how protracted crises involving chronic hunger and food insecurity affect twenty-two countries worldwide “due to a combination of natural disasters, conflict and weak institutions”.

Admin note – FAO on Haitian agriculture and upcoming guest-blog on the Quilombos case in Brazil

Following on to my prior post on Haiti, FAO has now reported that rural reconstruction continues to lag behind in Haiti, primarily due to lack of funding. In doing so, the FAO describes its cooperation with the Haitian Ministry of Agriculture and “over 170 non-governmental and international organizations” (!) in the agricultural cluster, providing an interesting example of an attempt to make the occasionally arcane terminology of humanitarian reform a bit more accessible to the general public.

Also interesting is the fact that investments in rural agriculture continue to be justified both on the basis of the decentralization concept and food security. In the words of FAO Senior Emergency and Rehabilitation Coordinator for Haiti Etienne Peterschmitt, “[g]reater investment in agriculture and the creation of jobs in rural areas are needed urgently to stem the flow of displaced people back into Port-au-Prince and to support food security throughout the country.” In addition, the FAO remains cognizant of the strain that hosting IDPs has placed on rural families:

“Immediately after the disaster hit in January we focussed on areas directly affected by the earthquake,” said Cristina Amaral, Chief of FAO Emergency Operations Service. “Now we are focussing on assisting host families whose coping mechanisms were severely strained by the influx of displaced persons into their communities and to prepare for the hurricane season.”

In other news, I am happy to announce that TN will soon be hosting a guest post on the Quilombos case in Brazil by Leticia Osorio and César Augusto Baldi. The post will give a thorough background briefing on the case involving the Quilombos indigenous people that is currently pending before the Supreme Court of Brazil. The forthcoming decision will determine the constitutionality of Presidential Decree 4887 of 2003 which regulates the procedure for granting property titles to Quilombo communities over the lands they occupy. The authors have also promised a follow-up guest posting once the Court’s decision is issued.