Proper laws are needed in order to stop the phenomenon of land grabbing caused by governments and multinationals, which violates natural and traditional land rights.
In many countries the political class pays little attention to the rights of farmers.
And yet selling their lands is compromising the future of their countries, in a world where at present there are already one billion hungry people.
The stakes are high: the consequences are serious for local populations and local farmers. Furthermore, if land grabbing continues it will soon become clear that the efforts made through the allocation of humanitarian and development aid offered by developed countries to bring an end to hunger and poverty will have been made in vain.
Few states have developed their own laws on international investment in land: legal avenues under national law are limited; villagers could redress the issue through international human rights law, focusing among other avenues on human rights to food or to property. Nevertheless this requires financial and technical resources that are often not available to those living in rural areas.
Besides, before accessing international human rights courts, it is first required to try and exhaust all available remedies before national courts, through their various degrees of appeal.
The substantive protection offered by international human rights law also presents shortcomings.
The African Charter on Human and Peoples’ Rights affirms the right to property but does not require states to compensate right-holders for losses suffered; it merely requires compliance with the applicable law. International law does not fill gaps in compensation requirements under national law.
This situation contrasts sharply with the legal protection that States are prepared to offer to foreign investors.
Bilateral investment treaties (now over 2700 worldwide) grant investors much stronger protection of their property rights, including through wide-ranging safeguards against expropriation, usually involving specific compensation standards, and through direct access to international arbitration as a way to settle disputes.
Therefore it is possible to affirm that more protection exists for investors as opposed to poor people and local communities.
A possible solution path may be found in soft law. In the context of international law, the term soft law covers such elements as:
The terminology of soft law remains relatively controversial as some international practitioners do not accept its existence, and others consider that there is some confusion as to its status in the realm of law.
Soft law instruments are usually considered as non-binding agreements which nevertheless hold much potential for morphing into hard law in the future. This "hardening" of soft law may happen in two different ways.
One is when declarations, recommendations, etc. are the first step towards a treaty-making process, in which reference will be made to the principles already stated in the soft law instruments. Another possibility is that non-treaty agreements are intended to have a direct influence on the practice of states, and to the extent that they are successful in doing so, they may lead to the creation of customary law.
Soft law is also viewed as a flexible option: it avoids the immediate and uncompromising commitment made under treaties and it is considered to be potentially a faster route to legal commitments than customary international law and its slow pace.
In today's globalized society it is easy to use the media and the internet to spread knowledge about the content of declarations and commitments made at international conferences and make soft law an instrument of social sanction.
On May 11th 2012, in a landmark decision the FAO’s Committee on World Food Security (CFS) endorsed a set of far-reaching global guidelines aimed at helping governments safeguard the rights of people to own or access land, forests and fisheries.
The new Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security outline principles and practices that governments can refer to when making laws and administering land, fisheries and forests rights.
These guidelines are the product of a three year inclusive process of consultations and negotiations which began in 2009 and brought together many stakeholders, ensuring that a wide range of voices were heard, including government officials, civil society organizations, private sector representatives, international organizations and academics. The result is a meaningful set of principles and practices that everybody — countries, the private sector, farmers, civil society — can stand behind and support, and that can work out in the real world.
The aim of the guidelines is to promote food security and sustainable development by improving secure access to land, fisheries and forests and protecting the rights of millions of often very poor people.
These guidelines address a wide range of issues as well including:
Much public debate has then focused on the land-grabbing phenomenon, which is one of the issues these guidelines deal with.
How can civil society and NGOs promote a legal framework?
NGOs and the civil society can promote sustainable investment and a regulation of the phenomenon of land grabbing by establishing close links between indigenous and local communities and national and international institutions.
We need a link between those working on the ground and people at the UN, the US Congress, the European Parliament, the African Union and intergovernmental institutions.
It is no longer sufficient to organize meetings and analyze topics in a generic way. We need all NGOs interested in the problem of Land grabbing to work together to find a solution in order to regulate that phenomenon.
Is it really that impossible? No.
The Uganda Land Alliance (ULA) is an example of a civil society organization that has recorded considerable success in its advocacy for pro-poor land policies. The success was due to the organization’s ability to utilize research both:
ULA distilled relevant research findings and presented them in formats ‘accessible’ to the poor, thereby raising public awareness and empowering vulnerable groups to make their voices heard and demand accountability from their political representatives.[ii]
At the other end of the spectrum, the organization drew on its expertise to engage the intellectually sophisticated policy makers. In engaging policy makers, ULA was able to use research to challenge the assumptions on which the government had based its land reform proposals. Assisted by research-based arguments and evidence, ULA played a successful intermediary role between the citizenry and the state elite, which eventually led to a land law (Land Act, 1998) that is not just driven by economic imperatives but also addresses issues of equity. Its effective action provoked the jealousy of Museveni’s government that ordered its closure.
[ii] Its effectiveness is proved by the decision of Museveni’s Government to close it.