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!
Risk calculation and blood sugar – Can CSR arguments get a handle on the global land-rush?
by Rhodri C. Williams
The nearly 18 months that have passed since David Pred wrote in this blog about industrial sugarcane production and land-grabbing in Cambodia have been dramatic ones in the area of corporate social responsibility (CSR).
Perhaps most notably, the tragic and entirely predictable collapse of the Rana Plaza garment factory in Dhaka, Bangladesh last May galvanized a process of negotiating binding arbitration agreements between corporations and labor unions with participation by the International Labor Organization (ILO). The resulting “Accord on Fire and Building Safety in Bangladesh” was described by Peter Spiro in Opinio Juris as “a signal episode in the continuing evolution of global corporate regulation”:
For better and for worse, the Rana Plaza disaster also generated competing models, with a group of North American retailers unveiling a non-legally binding alternative to the mainly European ‘Accord’ in July. While critics alleged that the latter plan amounted to an attempt by large corporations such as Walmart to co-opt the global CSR movement, US corporations condemned the Accord as rigid, insensitive to the realities of the global textiles market, and (perhaps most tellingly), a potential floodgate for litigation.
These developments indicate that the protracted debate over effective social regulation of global markets (beautifully summarised in this essay by Richard M. Locke) has lurched forward, but is far from over. While experts have raised technical concerns about the arbitration procedures espoused in the Accord, it has nevertheless clearly introduced a new paradigm, planting a new, binding standard in a field dominated by voluntary codes of conduct. However, the competing North American initiative demonstrates the persistence of non-binding commitments that rely on states to regulate the conditions of production, rather than giving workers recourse to the corporations that sit astride global production chains.
Meanwhile, the debate over large-scale acquisition of land in developing countries by foreign states and corporations – the ‘global land rush’ – has rumbled on. In particular light of the extent to which corporations have been actors in the land rush, early indications that the land tenure governance debate would converge with the broader CSR debate appear to have been more than borne out.
Most notably, the UN Food and Agriculture Organization (FAO) recently adopted a well-received set of “Voluntary Guidelines on the Responsible Governance of Tenure“. Though these are frequently referred to generically as ‘land grab guidelines’, they actually focus on the ‘supply side’, setting out duties of care for the authorities that dispose over land subject to investment (for more on the Guidelines, see this dedicated edition of the Land Tenure Journal). Meanwhile, a corresponding set of ‘demand side’ due diligence guidelines for investors – the “Principles for Responsible Agricultural Investments” is currently slated for adoption in 2014.
A similar pattern has emerged in advocacy with, for instance, the Rights and Resource Initiative (RRI) recently having reframed the ‘supply side’ question of State neglect of local tenure rights as a ‘demand side’ problem of corporate risk:
Meanwhile, more concerted efforts are being put into gauging the genuine scale of the problem, most notably through the development of a Land Matrix, a public online database of land deals. However, getting a handle on the scale of the problem, with its often murky and frequently unreported (or reported but unconsumnated) deals remains difficult. Nevertheless, two recent and overlapping insights have involved the extent to which the land rush has penetrated – and destabilized – South-East Asia and the role of the sugar industry and sugarcane in driving large scale land investment.
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Tagged Bangladesh, Cambodia, CSR, EU, FAO, Guatemala, IDI, ILO, land-grabbing, land-rush, natural resources, Oxfam, RRI, sugar