Description

It is well recognized that land-grabs have become a problem of enormous proportions across most of Asia. All of Asia’s developing countries have been deeply affected – especially China and India, but also many other countries in South and Southeast Asia. Land-grabs have been occasions for widespread corruption, have resulted in damage to the subsistence of peasants, have displaced millions of people, and caused abuses of the human rights particularly to disenfranchised and vulnerable communities, even occasioning violence and destabilizing protest movements in many places. In China, for example, it is estimated that currently there are most than 180,000 protest movements per year, and the majority of these relate to land-grab issues.

In recent years, agricultural land has become subject to what Olivier de Schutter calls a ‘race for arable lands’. Driven by anticipated food and energy insecurities, these long-term, large-scale acquisitions and leases arise largely in two ways. First, they arise from strategic public policy decisions to secure future food and energy needs resulting from interconnected factors such as population growth and urbanization trends; exhaustion of certain fossil fuels; climate change impacts upon agriculture. Alternatively they arise from speculative investments hedging on land as a lucrative investment, given the increasing ‘suite of scarcity’ – food, energy and water – that the world is facing. Notably, Asian states and Asian-based companies and investors have been involved in these types of acquisitions in countries in the Asian region but also notably in Africa and Latin America. Thus Asia has become a victim as well as a perpetrator in this connection. In both the instances cited above the beneficiaries of the land grabs were Asian foreign investors.

The scale and speed of these acquisitions is massive. In a 2011 report, the World Bank estimated that globally over 56 million hectares of large-scale farmland acquisitions or negotiations were announced between October 2008 and August 2009 alone. The effects of such land-grabs have been seriously destabilizing. Often they have reinforced or given opportunity to systemic problems of corruption, patrimony, lack of accountability and transparency, and gross and flagrant human rights abuses. In December 2009, the UN Special Rapporteur on the right to food noted the following basic rights as being vulnerable to violation as a result of land-grabs: the right to food; the right to adequate housing; the right to water; the rights of indigenous peoples; the right to self-determination; and right to fair exploitation of natural resources. Additionally there is mounting evidence of abuse of the civil and political rights of those who have resisted or protested against the land-grabs.

Yet, despite the scale of the land-grab problem, the legal systems in many of the affected countries seem unable – whether by design or default – to provide necessary and effective mechanisms for ensuring accountability, transparency and the protection of basic rights. Land-grabbing in its contemporary form is not simply a set of legal problems, but a complex, multi-dimensional phenomenon with economic, social, and political aspects. Booming economies in some states, and the quest for development in others, have fuelled this phenomenon. In Asia, it generally involves the acquisition of land for property development; extractive industry activity; infrastructure projects such as dams and highways; special economic zones; or industrial agriculture. It is acquisition that results in people being displaced from their homes or from the use of the land for small-scale farming or, in the case of indigenous peoples, from a way of life. The term ‘land-grab’ is generally, though not exclusively, used to describe taking of agricultural land. The term ‘land-grab’ implies an element of illegality or at least specious legality in the purchase or lease of large tracts of land by domestic or foreign companies or investors who often do this with the acquiescence or involvement of the state, i.e. central or local government. For the purposes of this project it will be assumed that this is exclusively the meaning of the term ‘land-grab’, state involvement being a necessary common element.

The phenomenon of land-grabbing has become the subject of much ongoing research and several conferences (see below). However, little attention has been given to the many legal questions that arise and the possible legal solutions available. For example, the World Bank Report Rising Global Interest in Farmland (2011) recognizes at many points that the rule of law and good governance must play a significant part in solving this problem; but the role of the law clearly requires further, and careful, scrutiny. A workshop was held on 5-6 April 2013 and 20 relevant scholars from several relevant countries studied the role of the law in land-grabs in several Asian jurisdictions.